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Public Library

Kansas City, Mo.

fENSION ENVELOPE CORP.

KANSAS CITY, MO PUBLIC LIBRARY

COLLECTED
LEGAL PAPERS

BY

OLIVER WENDELL HOLMES

NEW YORK
PETER SMITH

1952

COPYRIGHT, 1920, BY
HARCOURT, BRACE AND HOWE, INC.

REPRINTED, 1952

BY PERMISSION OF

HARCOURT, BRACE AND COMPANY

CONTENTS

PAGE

EARLY ENGLISH EQUITY, 1885 i

THE LAW. SPEECH, 1885 25

THE PROFESSION OF THE LAW. PART OF AN ADDRESS,

1886 29

ON RECEIVING THE DEGREE OF LL.D. SPEECH, 1886. . . 33

THE USE OF LAW SCHOOLS. ORATION, 1886 35

AGENCY, 1891

1 49

n 81

PRIVILEGE, MALICE AND INTENT, 1894 117

LEARNING AND SCIENCE. SPEECH, 1895 135

EXECUTORS, 1895 141

THE BAR AS A PROFESSION, 1896, 153

SPEECH AT BROWN UNIVERSITY, 1897 164

THE PATH OE THE LAW, 1897 167

LEGAL INTERPRETATION, 1899 : 203

LAW IN SCIENCE AND SCIENCE IN LAW. ADDRESS, 1889 210

SPEECH AT BAR ASSOCIATION DINNER, 1900 244

MONTESQUIEU, 1900 . . 250

JOHN MARSHALL. FROM THE BENCH, FEBRUARY 4, 1901 266
ADDRESS AT NORTHWESTERN UNIVERSITY LAW SCHOOL,

1902 272

ECONOMIC ELEMENTS, 1904 279

MAITLAND, 1907 283

HOLDSWORTH'S ENGLISH LAW, 1909 , 285

LAW AND THE COURT. SPEECH, 1913 296

INTRODUCTION TO CONTINENTAL LEGAL HISTORICAL

SERIES, 1913 298

IDEALS AND DOUBTS, 1915 33

BRACTON, 1915 3&

NATURAL LAW, 1918. . , . . 3 10

PREFACE

This collection has been made by the kindness of
a friend, Mr. Harold J. Laskl, and I owe Mm thanks
for gathering these little fragments of my fleece that
I have left upon the hedges of life. They are printed
as they appeared and I have been unable to do more
than run my eye over them, but I am glad to see
them put together in a book, as they offer some views
of law and life that I have not expressed elsewhere
so fully. The place of original publication is given
at the head of each paper, and I thank the several
publishers for their assent to the reprint.

A later generation has carried on the work that I
began nearly half a century ago, and it is a great
pleasure to an old warrior who cannot expect to bear
arms much longer, that the brilliant young soldiers
still give him a place in their councils of war.

OLIVER WENDELL HOLMES

June 15, 1920
WASHINGTON, D.C

EARLY ENGLISH EQUITY*

I. USES

AT the end of the reign of Henry V. the Court of
Chancery was one of the established courts of the
realm. I think we may assume that it had already
borrowed the procedure of the Canon law, which
had been developed into a perfected system at the
beginning of the thirteenth century, at about the
same time that the Chancellor became the most im-
portant member of the King's Council. It had the
"Examination and oath of the parties according to
the form of the civil law and the law of Holy Church
in subversion of the common law," 1 It had the sub-
poena, which also it did not invent, 2 and it had a
form of decree requiring personal obedience. 3

* Law Quarterly Review, Vol. i, p. 162. (1885.)

1 Rot. Parl. 84 (3 Hen. V. pt 2. 46, No. 23).

2 See writ addressed to sheriff, Rot. Claus. 16 Hen. HI. m. 2 dorso
in i Royal Letters, Hen. Ill (Rolls ed.), 523. Proc. Privy Council
(Nicholas) passim. Stat. 20 Ed. Ill, c. 5. The penalty was usually
money, but might be life and limb; i Proc. Priv. Counc. (21 R. II.
A.D. 1397). The citation of Rot. Parl. 14 Ed. Ill, in i Roll. Abr. 372,
which misleads Spence (i Eq. 338n.) and earlier and later writers,
should be 14 Ed. IV. (6 Rot. Parl. 143), as pointed out already by
Blackstone, 3 Comm. 52 n. We also find the writ Quibusdam certis de
causis, a writ in the form of the subpoena except that it omitted the
penalty; Palgrave, King's Council, pp. 131, 132, note X; Scaldewell v.
Stormesworth, i CaL Ch. 5.

3 See Audeley v. Audeley, Rot. Claus. 40 Ed. HI, "svr peme de sys

2 COLLECTED LEGAL PAPERS

Down to the end of the same reign (Henry V.)
there Is no evidence of the Chancery having known'
or enforced any substantive doctrines different from
those which were recognized in the other courts ex-
cept two. One of them, a peculiar view of contract,
has left no traces in modern law. But the other is
the greatest contribution to the substantive law
which has ever been set down to the credit of the
Chancery. I refer to Uses, the parent of our modern
trusts. I propose to discuss these two doctrines in
a summary way as the first step toward answering
the question of the part which Equity has played in
the development of English law.

As a preliminary, I ought to state that I assume
without discussion that the references to aequitas in
Glanvill, Bracton, and some of the early statutes
passed before the existence of a Chancery, havfe no
bearing on that question. 4 I ought also to say that
the matters of grace and favour which came before
the Council and afterwards before the Chancellor
do not appear to have been matters in which the sub-
stantive rules of the common law needed to be or

mill livres au paier au roy" cited Palg. King's Council, 67, 68; 2 Cal.
Ch. x. See prayer in 3 Rot. Parl. 61 (2 R. II. 26). Imprisonment for
contempt again is older than the Chancery, e.g. Mem. in Scacc. 27 (M.
22 Ed. I) in Maynard's Y. B., part i.

4 Glanvill, Prologus, Bracton, fol. 230; ib. sb, "Aequitas quasi
aequalitas." Fleta, II. C. 55, 9. Petition of Barons, .27 (A.D. 1258),
in Annals of Burton (Rolls ed.), 443, and Stubbs, Select Charters, for
remedy ex aequitate juris by writ of entry or otherwise. Dictum de
Kenttworth, pr. (A.D, 1266) Stat. of Realm, 51 Hen. Ill, and Stubbs,
Select Charters; Close Rolls of Hen. Ill, cited in Hardy, Int. to Close
Rolls, xxviii. n. 5 (8vo. ed. p. III). So "right and equite," letter missive
of Hen. V. to Chancellor, I Cal. Ch. xvi

EARLY ENGLISH EQUITY 3

were modified by new principles, but were simply
cases which, being for some reason without the juris-
diction of the King's ordinary courts, either were
brought within that jurisdiction by special order, or
were adjudged directly by the Council or the Chan-
cellor according to the principles of the ordinary
courts. 5

I agree with the late Mr. Adams that the most

5 Supervisory powers of Council over the Court, I. Gesta Hen. TL
(Ben. Abbas, Rolls ed.), 207, 208; Assize of Northampton, 7, ib. no;
and in Stubbs, Select Charters. Jurisdiction of Curia Regis over pleas
of land, not coming there as a matter of course, acquired by special
order: "Quod debeat vel dominus Rex velit in curia sua deduct; Glanv.
I. C. $. Jurisdiction of actions of contract de gratia; Bracton, fol. 100
a; Case referred by Chancellor to Curia Regis, 38 Ed. III., Hardy Int.
to Close Rolls, xxix (8vo. ed. 113 n). Grants of jurisdiction de gratia
in the form of Special Commissions of oyer and terminer complained
of Palgr. King's Council, 12, 13, pp. 27-33; Stat Westm. ii (13 Ed.
I), Ch. 29; i Rot. Parl. 290 (8 Ed. II. No. 8); Stat. Northampton
(2 Ed. Ill), C. 7; 2 Rot. Parl. 286, 38 Ed. III. 14, No. VI; 3 Rot.
Parl. 161 (7 R. II. No. 43).

As to cases terminated before the Council, see Rot. Claus. 8 Ed. I. m.
6 dorso, in Ryley, Plac. Parl. 442, and in 2 Stubbs, Const. Hist. 263. n.
i; 2 Rot Parl. 228 (25 Ed. III. No. 16; cf. No. 19). 3 Rot.
Parl. 44 (3 R. II. No. 49) seems mistranslated by Parkes, Hist. Ct. of
Ch. 39, 40. Matters at common law and of grace to be pursued before
the Chancellor; Rot. Claus. 22 Ed. III. p. 2, m. 2 dorso, cited Hardy,
Int. to Close Rolls, xxviii. (8vo. Ed. no), and Parkes, Hist.
Court of Ch. 35, 36 n. See Stat. 27 Ed. HI. st. i, C. i; Stat. 36
Ed. III. st. i, C. 9. All the reported cases in Chancery through Henry
V., with the exceptions which have been mentioned, are trespasses, dis-
seisins, and the like. And the want of remedy at law is generally due
to maintenance and the power of the defendant, or in one instance
to the technical inability of the plaintiff to sue the defendant (2 Cal.
Ch. viii), not to the nature of the right invoked. The object of the
repeated prayers of the Commons from Richard H. to Henry VI,
directed against the Council and the Chancellor, was that common
law cases should be tried in the regular courts, not that the ancient
doctrine might prevail over a younger and rival system. See Adams,
Equity, Introduction, xxxiii-xxxv.

Adams, Equity, Introd. xxxv.

4 COLLECTED LEGAL PAPERS

important contribution of the Chancery has been its
(borrowed) procedure. But I wish to controvert the
error that its substantive law is merely the product
of the procedure. And, on the other hand, I wish to
show that the Chancery, in its first establishment
at least, did not appear as embodying the superior
ethical standards of a comparatively modern state
of society correcting the defects of a more archaic
system. With these objects in view, I proceed to
consider the two peculiar doctrines which I have
mentioned.

First, as to Uses, The feoffee to uses of the early
English law corresponds point by point to the salman
of the early German law, as described by Beseler
fifty years ago. 7 The salman, like the feoffee, was a
person to whom land was transferred in order that
he might make a conveyance according to his grant-
or's directions. 8 Most frequently the conveyance

7 Beseler, Erbvertragen, I 16, pp. 277 et seq., 283, 271.

s Beseler, I. 15, 16; Heusler, Gewere, 478. Compare 2 Cal Ch.
Hi; i id. xviii. and passim. "Pernancy of profits, execution of estates,
and defence of the land, are the three points of the trust" or use.
Bacon, Reading on Stat. of Uses, Works (ed. Spedding), VII. p. 401;
i Cruise, Dig. Title XL, Ch. 2, 6; see Tit. XII., Ch. i, 3; Ch. 4,
i. Some of the first feoff ments to the use (ad opus) of another than
the feoffee which I have found mentioned by that name seem to have
been a means of conveying property to the cestui que use in his absence,
very like the earliest employment of the salman* But as the con-
veyances are supposed to be made to servants of private persons (Bract,
fol. 193 b) or officers of the king, it may be doubtful whether any infer-
ence can be drawn from them; i Royal Letters, Henry III. pp. 122,
420; cf. 421 (A.D. 1220, 1223). Compare Provisions of Oxford '(Oath
of guardians of king's castles) in Annals of Burton (Rolls ed.), 443, and
Stubbs, Select Charters; it seems doubtful whether the ex-
pression ad opus was used at first in a technical sense, e.g. "castellum
Dofris ad opus meum te jacturum" Eadmer (Rolls ed.), 7- "A&

EARLY ENGLISH EQUITY 5

was to be made after the grantor's death, the
grantor reserving the use of the land to himself dur-
ing his life. 9 To meet the chance of the salman's
death before the time for conveyance was over, it
was common to employ more than one, 10 and persons
of importance were selected for the office. 11 The
essence of the relation was the fiducia or trust re-
posed in the fidelis manus who sometimes con-
firmed his obligation by an oath or covenant. 13

This likeness between the salman and the feoffee
to uses would be enough, without more, to satisfy
me that the latter was the former transplanted. But
there is a further and peculiar mark which, I think,
must convince every one, irrespective of any general
views as to the origin of the common law.

Beseler has shown that the executor of the early
German will was simply a salman whose duty it

opus ejusdem mulieris" 2 Gesta Hen. H, (Ben. Abbas, Rolls ed.) 160,
161 ; Y. B. 3 Ed. III. 5 pi. 13 ; 2 Rot. Pad. 286 (38 Ed. III. 14 No. vi).
But as early as 22 Ass. pi. 72, fol. 101, in the case of a gift alleged
to be fraudulent, we find the court inquiring who took the profits, and
on the inquest answering that the donor did, Thorp declares that the
gift only made the donee guardian of the chattels to the use of the
donor. See further St 7 R. II., Ch. 12.

9 Beseler, I., 16, pp. 277 et seq.; Heusler, supra. Nearly every
feoffment mentioned in the Calendars of Proceedings in Chancery down
to the end of Henry VI. is for the purpose of distribution, after death.
I Cai Ch. xxi, xsxy, xliii, liv, lv, Ivi; 2 id., Hi, xix, xx, xxi,
xxii, xxxiii, xxxvi, etc. Abbrev. Plac. 179, col. 2, Norht rot. 15 do.; ib.
272, H. 9 Ed. I., Suf. rot 17. Fitz. Abr. Subpcna, pi. 22, 23; Littleton,
462.

1 Beseler, I., p. 283 ; 2 CaL Ch. iii.

11 Beseler, I., p. 271.

12 Beseler, I., p. 267: "Fidei suae committens" ib. 286. Compare
the references to good faith in all the bills in Cal. Ch.

is Beseler, I, pp. 265-267; 2 Cal. Ch. iii, xxviii; i id. Iv.

6 COLLECTED LEGAL PAPERS

was to see legacies and so forth paid if the heirs re-
fused. The keres institutus being unknown, the
foreign law which introduced wills laid hold of the
native institution as a means of carrying them
into effect. Under the influence of the foreign law
an actual transfer of the property ceased to be re-
quired. It was enough that the testator designated
the executors and that they accepted the trust; and
thus it was that their appointment did not make the
will irrevocable, as a gift with actual delivery for
distribution after the donor's death would have
been. 14

There can be no doubt of the identity of the con-
tinental executor and the officer of the same name
described by Glanvill; and thus the connection be-
tween the English and the German law is made cer-
tain. The executor described by Glanvill was not
a universal successor. Indeed, as I have shown in
my book on the Common Law, the executor had not
come to be so regarded, nor taken the place of the
heir in the King's courts even as late as Bracton.
To save space I do not copy GlanvilFs words, but
it will be seen on reading that the function of the
executor was not to pay debts that was the heir's
business, 15 but to cause to stand the reasonable divi-
sion of the testator as against the heirs. 16 The mean-

i* Beseler, Erbvertragen, I., pp. 284-288; Brunner in I Holtzen-
dorff, Encyclop. (3rd ed.), 216; cf. Littleton, 168, Hob. 348, Dyer,
314 pL, 97 Finch, Law 33-

i 5 Glanv. VII., C. 8; see XIII. C. 15; Dial, de Scaccario, IL, 18;
Regiam Majestatem, IL, .39.

is Glanv. VJL, C. 6~.

EARLY ENGLISH EQUITY 7

ing of this function will be further explained when
I come to deal with the rights of the cestui que use. ir
The executor had already got his peculiar name
in GlanvilTs time, and it would rather seem that
already it had ceased to be necessary for the testa-
tor to give him possession or seizin. But, however
this may be, it is certain that when the testator's
tenements were devisable by custom, the executor
was put in possession either by the testator in his
lifetime or else immediately after the testator's death.
As late as Edward I. "it seemed to the court as to
tenements in cities and boroughs which are left by
will (que legata sunt) and concerning which there
should be no proceeding in the King's Court, because
it belongs to the ecclesiastical forum, 18 that first

17 As to the functions of the executor in the time of Bracton, see
The Common Law, 348, 349, and further, Bracton, fol. 4oyb, "Et
shut dantur haeredibus contra debitores et non execvtorib-us ita dantur
actiones creditoribus contra, haeredes et non contra executores" Ibid.
fol. o,8a, zoia, nsb; Stat. 3 Ed. I., Ch. 19. The change of the execu-
tor to universal sucessor upon the obvious analogy of the haeres was
inevitable j and took place shortly after Bracton wrote. It was held
that debt lay against and for executors; Y. B. 20 & 21 Ed, I, 374;
30 Ed. L, 238. See further, Stat. Westm. H. 13 Ed. I., C. 19, 23,
(A.D. 1285); Fleta, IL C. 62, 8-13; C. 70, S; and C. $7,
13, 14, copying, but modifying, Bract, fol. 6ia, b, 4o?b supra. As to
covenant, see Y. B. 48 Ed. III., i, 2, pi. 4. The heir ceased to be bound
unless 'named; Fleta, II. C. 62, 10; The Common Law, 348; cf.
Fitz. Abr. Dett, pi. 139 (P. 13 Ed. HI.) . Finally, Doctor and Student,
i. c. 19, ad finem, speaks of "the heir which in the law of England is
called the executor." In early English, as in early German law, neither
heir (Y. B. 32 & 33 Ed. I., 507, 508) nor executor was liable for the
parol debts of ancestor or testator (Y. B. 22, Ed. L, 456; 41 Ed. HI.,
13, pi. 3: ii Hen. VII. 26; 12 Hen. VIIL n, pL 3; Dr. and Stud. II,
Ch. 24), because not knowing the facts they could not wage their law:
Y. B. 22 Ed. I., 456 ; Laband, Vermogensrechtlichen Klagen, pp. 15, 16.

18 Cf. Bract., fol. 407b.

8 COLLECTED LEGAL PAPERS

after the death of the testator the will should be
proved before the ordinary, and the will having- been
proved, the mayor and bailiffs of the city ought to
deliver seizin of the devised and devisable tenements
(de tenements legatis et qu& mnt legabilia) to the
executors of the will saving the rights of every one." 1 *
A little later the executor ceased to intervene at all,
and the devisees might enter directly, or if the heir
held them out, might have the writ Ex gravi
querela?*

If, as I think, it is sufficiently clear that in the
reign of Edward I. the distinction between an execu-
tor and a feoffee to uses was still in embryo, it is
unnecessary to search the English books for evidence
of the first stage when the testator transferred posses-
sion in his own lifetime. A case in 55 Henry III.
shows executors seized for the purpose of applying
the land to pious uses under a last will, and defending
their seizin in their official capacity, but does not dis-
close how they obtained possession. 21 A little earlier

* 9 Abbr. Plac. 284, 285 (H. 19 Ed. I. Devon, rot. 51) . Note the
likening of such tenements to chattels, Bract. 40 yb; 40 Ass. pi. 41; Co.
Lit ma.

20 39 Ass. pi. 6, fol. 232, 233, where there is no question of the
executor, but special custom determines whether the devisee shall enter,
be put in by the bailiff, or have the writ. In Littleton's time the
devisee's right of entry was general: 167; Co. Lit. in. As to the
writ, see 40 Ass. pi. 41. fol. 250; F. N. B. 198 L. et seq; Co. Lit. in.
The only writ mentioned by Glanvill seems to be given to the execu-
tor, or if there is no executor to the propinqui; lib. VII., C. 6, 7. Of
course I am not speaking of cases where the executors were also the
devisees, although' even in such cases there was a tendency to deny them
any estate, if there was a trust; 39 Ass. pi. 17; Litt. 169.

21 Abbrev. Plac. 179, col. 2; Norht, rot, 15 in dorso.

EARLY ENGLISH EQUITY 9

still Matthew Paris speaks of one who, being too
weak to make a last will, makes a friend expressorem
et execMtorem It is a little hard to distinguish
between such a transaction and a feoffment to uses
by a few words spoken on a death-bed, such as is
recorded in the reign of Henry VI. 23 But the most
striking evidence of the persistence of ancient cus-
tom was furnished by King Edward III. in person,
who enfeoffed his executors, manifestly for the pur-
pose of making such distribution after his death as
he should direct; but because he declared no trust
at the time, and did not give his directions until
afterwards, the judges in Parliament declared that
the executors were not bound, or, as it was then put,
that there was no condition. 2 *

Gifts inter vivos for distribution after death re-
mained in use till later times. 25 And it may be acci-
dent, or it may be a reminiscence of ancient tradition,
when, under Edward IV., the Court, in holding that
executors cannot have account against one to whom
the testator has given money to dispose of for the
good of his soul, says that as to that money the
donee is the executor. 26

22 4 Matt. Paris, Chron. Maj. (Rolls ed.), 605, A.D. 1247.

23 i Cal. Ch. xliii; S. C. Digby, Hist. Law of Real Prop, (snd ed.)
301, 302. Cf Heusler, Gewere, 478, citing Meichelbeck (i Hist. Fris.
Pars instrumentaria) , No. 300; "Valida egritudine depresses traditionem
in mamts proximorum suorimt posuit, eo modo, si ipse ea egritudine
obisset, ut vice Ulius traditionem perfecissent"

2* 3 Rot Parl. 60, 61 (2R. U Nos. 25, 26).

25 Babington IL Gull, I Cal. Ch. Ivi, Mayhewe v. Gardener, i Cal.
Ch. xcix, c.

26 Y. B. 8 Ed. IV, s> pL 12. In Mayhewe v. Gardener, i Cal. Ch.

io COLLECTED LEGAL PAPERS

At all events, from an early date, if not in Glan-
vflPs time, the necessity of a formal delivery of de-
vised land to the executor was got rid of in Eng-
land as Beseler says that it was on the Continent.
The law of England did in general follow its conti-
nental original in requiring the two elements of
traditio and investitura for a perfect conveyance. 27
But the Church complained of the secular courts for
requiring a change of possession when there was a
deed. 28 And it was perhaps because wills belonged
to the spiritual jurisdiction that the requirement was
relaxed in the case of executors. As has been shown
above, in the reign of Edward I. possession was not
delivered until after the testator's death, and in that
of Edward III. it had ceased to be delivered to them
at all. Possibly, however, a trace of the fact that
originally they took by conveyance may be found in
the notion that executors take directly from the will
even before probate, still repeated as a distinction
between executors and administrators. 29

It is now time to consider the position of the
cestui que use. The situations of the feoffor or

xcix, c, the defendant, who has received all the property of a deceased
person by gift in trust to pay debts, etc., was decreed to pay dilapida-
tions for which the deceased was liable.

27 Glanv. viL, Ch. i, 3; Annals of Burton (Rolls ed,), 421 (AJX
1258); Bracton, fols. 38a, b, 39b, i6gb, i94b, 2isb, 3, 2i4b; Abbr.
Plac. 272 (H. 9 Ed. I), Suff. rot 17; i CaL Ch. liv, Iv; Beseler,
Erbvertragen, I. i$, p. 261; 16, pp. 277 et seq.; Heusler, Gewere,
pp. i, 2; Sohm. Ehschliessung, p. 82; Schulte, Lehrb. d. Deutsch. R.u.
Rechtsgesch, 148 (5th ed.), pp. 480 et seq.

28 Annals of Burton (Rolls ed.), 421 (AJ>. 1258).
2 Graysbrook t>. Fox, Plowd, 275, 280, 281,

EARLY ENGLISH EQUITY n

donor and of the ultimate beneficiaries were differ-
ent, and must be treated separately. First, as to the
former. In England, as on the Continent, upon the
usual feoffment to convey after the feoffor's death,
the feoffor remained on the land and took the profits
during his life. Feoffors to uses are commonly called
pernors of profits in the earliest English statutes
and are shown in possession by the earliest cases. 3 '
As Lord Bacon says in a passage cited above, per-
nancy of the profits was one of the three points of a
use. It was the main point on the part of the
feoffor, as to make an estate, or convey as directed,
was the main duty on the side of the feoffee. But
all the German authorities agree that the pernancy
of the profits also made the gewere, or protected
possession, of early German law. 31 And in this, as
in other particulars, the English law gave proof of
its origin. In our real actions the mode of alleging
seizin was to allege a taking of the esplees or profits. 32
If the remedies of the ancient popular courts had
been preserved in England, it may be conjectured
that a cestui que use in possession would have been

so Stat. 50 Ed. III., Ch. 6; i R. II., Ch. 9 ad fin.; 2 R. II. Stat. 2,
Ch. 3; 15 R. II., Ch. 5; 4 Hen. IV., Ch. 7; n Hen. VI., Ch. 3, 5; i Hen.
VII., Ch. i; 19 Hen. VII., Ch. 15; Rothenhale v. Wychingham, 2 Cal.
Ch. 3. (Hen. V.) ; Y. B. 27 Hen. VHL 8; Plowden, 352; Litt. 462,
464; Co. Lit. 272b So i Cruise, Big. Tit. 12, Ch. 4, I 9- "H the
trustee be in the actual possession of the estate (which scarce ever
happens) ."

31 Heusler, Gewere, 51, 52, 59 J Brunner, Schwurgerichte, 169, 170;
Laband Vermogensrechtlichen Klagen, 160; i Franken, Franzos.
Pfandrecht, 6.

32 Jackson, Real Actions, 348 and passim. See Statutes last
cited, and Stat. 32 Hen. VIH, Ch. 9, 4.

12 COLLECTED LEGAL PAPERS

protected by the common law. 33 He was not, be-
cause at an early date the common law was cut down
to that portion of the ancient customs which was
enforced in the courts of the King. The recogni-
tions (assizes) ? which were characteristic of the royal
tribunals, were only granted to persons who stood in
a feudal relation to the King, 34 and to create such
a relation by the tenure of land, something more was
needed than de facto possession or pernancy of
profits. In course of time the fact that the new
system of remedies did not extend itself to all the
rights which were known to the old law became
equivalent to a denial of the existence of the rights
thus disregarded. The meaning of the word "seizin"
was limited to possession protected by the assizes, 35
and a possession which was not protected by them
was not protected at all. It will be remembered,
however, that a series of statutes more and more
likened the pernancy of the profits to a legal estate
in respect of liability and power, until at last the
statute of Henry VIII. brought back uses to the
courts of common law. 36

It is not necessary to consider whether the denial
of the assizes to a cestui que use in possession was
peremptory and universal from the beginning, be-
cause the feoffor had another protection in the cove-
nants which, in England as on the Continent, it was

33 Franken, Franzos. Pfandr., 6.

34 Heusler, Gewere, 126, 423, 424,

35 Heusler, Gewere, 424.

36 See Statutes before cited, p. n n. 30, and i R. III. Ch. i; 27
Hen. VIIL, Ch. 10.

EARLY ENGLISH EQUITY 13

usual for him to take. 37 For a considerable time the
Anglo-Norman law adhered to the ancient Prankish
tradition in not distinguishing between contract and
title as a ground for specific recovery, and allowed
land to be recovered in an action of covenant, so that
it would seem that one way or another feoffors
were tolerably safe. 38

But cestuis f gue use in remainder were strangers
both to the covenant and the possession. There was
an obvious difficulty in finding a ground upon which
they could compel a conveyance. The ultimate
beneficiaries seem to have been as helpless against
the salman in the popular courts on the Continent
as they were against the feoffee in the Curia Regis.
Under these circumstances the Church, which was
apt to be the beneficiary in question, lent its aid.
Heusler thinks that the early history of these gifts
shows that they were fostered by the spiritual power
in its own interest, and that they were established in

37 E. g. Rothenhale v. Wychingham, 2 CaL Ch. 3.

38 The Common Law, 400. See further, LI. Gul. I., Ch. 23;
Statutum Walliae, 12 Ed. I, "Breve de conventione, per quod petuntur
aliquando mobilia, aliquando immobilia" ; "Per breve de conventione
aliquando petitur tiberum tenementum" Fleta, II. Ch. 6s, 12 ; Y. B.
22 Ed. I., 494, 496, 598, 600; 18 Ed. II. (Maynard), 602, 603; Fitz.
Abr. Covenant, passim. This effect of covenant was preserved in the
case of fines until a recent date; 2 Bl. Comm. 349, 350, and App. IV.,
i. As to a term of years, see Bract, fol. 22oa, i ; Y. B. 20 Ed. I.,
254; 47 Ed. III., 24 (cf. 38 Ed. Ill, 24); F. N. B. 145 M; Andrews 1
Case, Cro. Elk. 214; S. C. 2 Leon. 104; and as to chattels, see Y. B.
27 Hen. VIII., 1 6. As to the later raising of uses by way of covenant,
see Y. B. 27 Hen. VIII, 16; Bro. Abr. Feoffments al Uses, pi. 16;
Dyer, 55 (3) ; ib. 96 (40) ; ib. 162 (48) ; Sharington v. Strotton, Plowd
298, 309.

14 COLLECTED LEGAL PAPERS

the face of a popular struggle to maintain the ancient
rights of heirs in the family property, which was
inalienable without their consent. 39 In view of
the effort which the Church kept up for so long a
time to assert jurisdiction in all matters of fidei
laesio, it would seem that a ground for its interfer-
ence might have been found in the fiducia which, as
has been said, was of the essence of the relation,
and which we find referred to in the earliest bills
printed in the Chancery Calendars.

This is conjecture. But it seems clear that on
some ground the original forum for devisees was the
Ecclesiastical Court. Glanvill states that it belongs
to the ecclesiastical courts to pass on the reasonable-
ness of testamentary dispositions, 40 and, while he
shows that the executor had the King's writ against
the heir, gives no hint of any similar right of legatees
or devisees against the executor. The Decretals of
Gregory disclose that a little later the Church com-
pelled executors to carry out their testator's will, 41
and Bracton says in terms that legatees and devisees
of houses in town or of an usufruct could sue in the
ecclesiastical courts. 42 As we have seen, in the case
of houses in town the executor ceased to intervene,
the ecclesiastical remedy against him became super-
fluous and devisees obtained a remedy directly

39 Heusler, Gewere, 479 et seq. See Glanv. VII., Ch. 9, where the
Church is shown to have the settlement of the question whether the
will was reasonably made. Cf. ib. Ch. i., 3.

40 Glanv. VII, Ch. 6 and 8.

** Decret. Greg. III. Tit. 26, cap, 19. AJ>. 1235,
42 Bract, fol. 4070, 6ia, b.

EARLY ENGLISH EQUITY 15

against deforciants in the King's courts. But with
regard to legacies, although after a time the Chancery
became a competing, and finally, by St. 20 & 21
Viet. Ch. 77, s. 23, the exclusive jurisdiction, as late
as James I. "the Lord Chancellor Egerton would say,
the Ecclesiastical Courts were more proper for Lega-
cies, and sometimes would send them thither." * 3

These courts were unable to deal with uses in the
fulness of their later development. But the chief
instances of feoffment upon trust, other than to the
uses of a last will or for distribution after "death,
of which there is any record until sometime after
the Chancery had become a separate court under
Edward III. were for the various fraudulent pur-
poses detailed in the successive petitions and statutes
which have come down to us. 44 It should be men-
tioned too, that there are some traces of an attempt
by cestuis que use who were strangers to the feoff-
ment to enforce the trust by way of a condition in
their favor, and it seems to have been put that way
sometimes in the conveyances. 45

For a considerable time, then, it would seem that
both feoffors and other cestuis que use were well

43 Nurse v. Bonnes, Choyce Cases in Ch. 48. . See further Glen tj.
Webster, 2 Lee, 31. As to common law, see Deeks v Strutt, 5 T.R. 600;
Atkins v. Hill, Cowper, 284, and cases cited.

44 Petition of Barons, C. 25 (Hen. III. A.D. 1258), Annals of Burton
(Rolls ed.), 422; id. Stubbs, Select Charters; Irish Stat. of Kilkenny,
3 Ed. II., Ch, 4; Stat 50 Ed. III., Ch. 6; i R. II, Ch. 9; 2 R.
II., Stat 2, Ch. 3; 7 R. n, Ch. 12; 15 R- H., Ch. 5; 4 Hen. IV.,
Ch. 7. See also Statute of Marlebridge, 52 Hen. HI., Ch. 6.

2 Rot, ParL 79 (3 R. H., Nos. 24, 25); ib. 60, 61 (2 R. II. Nos.
25. 26).

16 COLLECTED LEGAL PAPERS

enough protected. The 'first complaint we hear Is
under Henry IV. It is of the want of a remedy
when property is conveyed by way of affiance to
perform the will of the grantors and feoffors and
the feoffees make wrongful conveyances. 46 As soon
as the need was felt, the means of supplying it was
at hand. Nothing was easier than for the ecclesias-
tics who presided in Chancery to carry out there,
as secular judges, the principles which their prede-
cessors had striven to enforce in their own tribunals
under the rival authority of the Church. As Chan-
cellors they were free from these restrictions which
confined them as churchmen to suits concerning mat-
rimony and wills. Under Henry V. we find that
cestuis qtie use had begun to resort to equity/ 7
whereas under Richard II. the executors and feoffees
of Edward III. had brought their bill for instruc-
tions before the Judges in Parliament. 48 In the
next reign (Henry VI.) bills by cestuis que use be-
come common. The foundations of the claim is the
fides, the trust reposed and the obligation of good
faith, and that circumstance remains as a mark at
once of the Teutonic source of the right and the
ecclesiastical origin of the jurisdiction.

If the foregoing argument is sound, it will be seen
that the doctrine of uses is as little the creation of
the subpoena, or of decrees requiring personal obedi-

46 3 Rot. Parl. 511 (4 Hen. W., No. 112, A.D. 1402).

47 Dodd i). Browning, i Cal., Ch. xiii; Rothenhale v. Wychingham,
2 Cal. Ch. iii.

48 2 Rot. Parl. 60, 61 (2 R. II., Nos. 25, 26).

EARLY ENGLISH EQUITY 17

ence, as it Is an improvement invented in a relatively
high state of civilization which the common law was
too archaic to deal with. It is true, however, that
the form of the remedy reacted powerfully upon the
conception of the right. When the executor ceased
to intervene between testator and devisee the connec-
tion between devises and uses was lost sight of
And the common law courts having refused to pro-
tect even actual pernors of profits, as has been ex-
plained, the only place where uses were recognized
by that name was the Chancery. Then, by an identi-
fication of substantive and remedial rights familiar
to students, a use came to be regarded as merely
a right to a subpoena. It lost all character of a
jus in rem, and passed into the category of choses
in action. 49 I have shown elsewhere the effect of
this view in hampering the transfer of either the
benefit or burdefi of uses and trusts. 50

II. CONTRACT

I must now say a few words of the only other
substantive doctrine of which I have discovered any
trace in the first period of English Equity. This is
a view of Contract, singularly contradicting the

49 Co. Lit. 272b; Bacon, Reading on Stat, of Uses, Works (ed. Sped-
ding), VII., p. 398-

50 The Common Law, ch. n; see especially pp. 399, 407-409, and,
in addition to the books cited on p. 408, notes i and 2 ; Fitz. Abr.
Subpena, pi. 22; Dalamere v. Barnard, Plowden, 346, 352; Pawlett v.
Attorney-General, Hardres, 465, 469; Co. Lit. 2 tab; W. Jones, 127.

i8 COLLECTED LEGAL PAPERS

popular notion that the common law borrowed Con-
sideration from the Chancery, The requirement of
consideration in all parol contracts is simply a modi-
fied generalization of the requirement of quid pro quo
to raise a debt by paroi The latter, in certain cases
at least, is very ancient, and seems to be continuous
with the similar doctrine of the early Norman and
other continental sources which have been much dis-
cussed in Germany. 51

I may remark by way of parenthesis that this
requirement did not extend to the case of a surety,
who obviously did not receive a quid pro quo in the
sense of the older books and yet could bind himself
by parol from the time of the Somma to Edward III,

61 Somma > H., C. 26, 2, 3, in 7 Ludewig, Reliq. Manuscript
pp. 313^3*4; Grand Coustumier, C. 88 and 90; Statutum Walliae, 12
Ed. I; "St vero Debitor venerit, necesse habet Actor exprimere peti-
tioner, et rationem sue petitionis, videlict, quod tenetur ei in centum
marcts, quas sibi accomodavit, cujus solutionis dies preteriit, vel pro terra
vel pro equo, vel p ro aliis rebus sen catallis quibuscunque sibi venditis,
vel pro arreragiis redditus non provenientis de tenements, vel de aliis
contractibus," etc. Y. B. 39 Ed. III., 17, 18, "issint il est quid pro quo";
3 Hen. VI. 36, pi. 33; ? Hen VI ^ pL 3 - Q Hen. VI. 52, pi. 35 J
ii Hen, VI. 35, pi. 3o at foL 3 g. ^ Hen> VI ^ pl< lgi See ^Q
"Justa debendi causa" in G lanv. X. C. 3; Dial, de Scacc. ii., C. i and 9;
Fitz, Abr. Dett, pi. I3g . Y . B. 43 Ed. III. ji, pi. i. Form of Count
given by i Britton ( ed . Nichols), 161, 162, pL 12; Y. B. 20 & 21 Ed. I.
App. 488, "Marchandise" ground of debt. Sohm, Eheschliessung, p. 24;
I Franken, Franzos. Pf an dr., 4, p. 43 ; Schulte, Reichs- u. Rechtsgesch.
156 (4th ed.), p. 497 . Consideration is first mentioned in equity
in 31 Hen. VI, Fitz., Abr. Subpena, pi. 23; Y. B. 3 7 Hen. VL 13, pL
3, and by the name quid, pro quo. So in substance as to assumpsit;
Y. B. 3 Hen. VI. 36, p i. 33 .

The interpretation of Fleta, II, C. 60, 25 by the present writer
in The Common .Law, 266, is rightly criticised in Pollock, Contr. ( 3 rd
ed.), 266, as appear by comparing the more guarded language of Brae-

ton,

EARLY ENGLISH EQUITY 19

and even later where the custom of various cities kept
up the ancient law." Sohm has collected evidence
that suretyship was a formal contract in the time of
the folk laws, in aid of his theory that the early law
knew only two contracts; the real, springing from
sale or barter and requiring a quid pro quo; and the
formal, developed from the real at an early date by
a process which has been variously figured. 53 I do
not attempt to weigh the evidence of the continental
sources, but in view of the clear descent of surety-
ship from the giving of hostages, and the fact that
it appears as a formless contract in the early Norman
and Anglo-Norman Law, I find it hard to believe that
it owed its origin to form any more than to quid pro
quo. Tacitus says that the Germans would gamble
their personal liberty and pay with their persons if
they lost. 54 The analogy seems to me suggestive. I
know no warrant for supposing that the festuca was
necessary to a bet.

52 Somma, I., C. 62, II. C. 24; 7 Ludewig, 264, 309; Grand
Coustum. C. 89 (cf. Bract, fol. i49b, 6) ; The Common Law,
260, 264. See, besides authorities there cited, F. N. B. 122 K; ib.

1 in marg., 137 C; Y. B. 43 Ed. HI, u, pi. i; g Hen. V. 14, pL 23.
Car. M. Cap. Langob, AJD. 813, ch. 12, "Si quh pro alterius debito
se pecuniam suam promiserit redditurum in ipsa promissione est retinen-
dus" cited Loning, Vetragsbruch, 62, n. i.

In 2 Gesta Hen. H. (Ben. Abbas, Rolls ed.), 136, sureties make oath
to surrender themselves if the agreement is broken. Sohm, Eheschlies-
sung, 48, goes so far as to argue that the oath was simply one
substitute for the Salic formal contract But I find no evidence that
the oath was necessary in England unless for ecclesiastical jurisdiction.

2 Gesta Hen. II., p. 13 7-

58 See, e.g., i Franken Franzos. Pfandr. 16, pp. 200-216;
18, pp. 241 et seq.; ib. f 261-266.
54 Germ. 24.

so COLLECTED LEGAL PAPERS

I go one step further, and venture hesitatingly to
suggest that cases which would now be generalized
as contract may have arisen independently of each
other from different sources, and have persisted side
by side for a long time before the need of generaliza-
tion was felt or they were perceived to tend to estab-
lish inconsistent principles. Out of barter and sale
grew the real contract, and if the principle of that
transaction was to be declared universal, every con-
tract would need a quid pro quo. Out of the giving
of hostages, familiar in Caesar's time, grew the
guaranty of another's obligation, and if this was to
furnish the governing analogy, every promise pur-
porting to be seriously made would bind. But the
two familiar contracts kept along together very
peaceably until logic, that great destroyer of tradi-
tion, pushed suretyship into the domain of covenant,
and the more frequent and important real contract
succeeded in dividing the realm of debt with instru-
ments under seal. 55

To return to Equity. In the Diversity of Courts
(Chancery) it is said that "a man shall have remedy
In Chancery for covenants made without specialty,
If the party have sufficient witness to prove the cove-

55 Y. B, 18 Ed. III., 13, pL 7; 44 Ed. III. 21, pi 23; 43
Ed. HI, ii pi. i. So warranty, which had been merely an -incident of
a sale (Lex Salica, C. 47; Glanv. X., C. 15 and 17), came to be
looked at as a covenant, Y. B. 44 Ed. III. 27, pi. i; and at a later date
bailment was translated into contract. As a further illustration, I may
add that in modern times Consideration has still been dealt with by
way of remuneration (see e.g. 2 Bl. Comm., 444; I Tidd's Practice,
C. i, as to assumpsit), and only very recently has been resolved into
a detriment to the promisee, in all cases.

EARLY ENGLISH EQUITY 21

nants, and yet he Is without remedy at the common
law." This was in 1525, under Henry VIII.,, and
soon afterwards the contrary was decided. 56 But the
fact that a decision was necessary confirms the testi-
mony of the passage quoted as to what had been the
tradition of the Chancery. I do not propose to con-
sider whether thus broadly stated it corresponded to
any doctrine of early law, or whether any other cases
could be found, besides that of the surety, In which
a man could bind himself by simply saying that he
was bound. For although the meaning of the tradi-
tion had been lost in the time of Henry VIII., when
the text-book spoke of covenants generally, the
promise with which Equity had dealt was a promise
per fidem. Thus, under Edward IV, 57 a subpoena
was sued in the Chancery alleging that the defend-
ant had made the plaintiff the procurator of his x bene-
fice and promised him per fidem to hold him harm-
less for the occupation, and then showing a breach.
The Chancellor (Stillington) said that "in that he
is damaged by the non-performance of the promise
he shall have his remedy here." And to go back to
the period to which this article Is devoted, we find
in the reign of Richard II. a bill brought upon a
promise to grant the reversion of certain lands to
the plaintiff, setting forth that the plaintiff had come
to London and spent money relying upon the affiance
of the defendant, and that as he had no specialty,
and nothing in writing of the aforesaid covenant, he

56 Gary, Rep. in Ch. 5, Choyce Cases in Ch. 49.

57 Y. B. 8 Ed., IV., 4, pi. 2; Fitz, Abr. Subpena, pi. 7.

22 COLLECTED LEGAL PAPERS

had no action at the common law. 58 This is all the
direct evidence, but slight as it is, it is sufficient to
prove an ancient genealogy, as I shall try to show.

Two centuries after the Conquest there were three
well-known ways of making a binding promise:
Faith, Oath, and Writing. 59 The plighting of one's
faith or troth here mentioned has been shown by
Sohm and others to be a descendant of the Salic
Fides facta, and I do not repeat their argument. 60
It still survives in that repertory of antiquities, the
marriage ceremony, and is often mentioned in the
old books. 61

Whether this plighting of faith (fides data, fides
facta) was a formal contract or not in the time of
the Plantagenets, and whether or not it was ever

5 8 Whalen v. Huchyndin, 2 Cal. Ch. ii.

59 Compare Letter of Gregory IX. to Henry III., Jan. 10, 1233,
in i Royal Letters, Henry III. (Rolls ed.), p. 55 1, " Possessions
. . , fide ac juramentis a te praestitis de non revocandis eisdem,
sub litterarum tuarum testimoniis concessisti" with Sententia Rudolfi.
Regis, A.D. 1277, Pertz, Monumenta, Leges II, p. 412: "Quaesivimus
. . . utrum is gui se datione fidei vel juramento corporaliter prestito,
vel patentibus suis litteris, ad obstagium vel solutionem alicujus debiti
ad cerium terminum obligavit, nee in ipso termino adimplevit ad quod
taliter se adstrinxit de jure posset . . . per iulicium occupari? Et
promulgatum extitit communiter ab omnibus, quod is, qui modo pre-
dicto . . . promisso non paruit, valeat, ubicumque inveniatur, auc-
toritate iudiciaria conveniri"

60 Lex Salica (Merkel), Ch. So; Lex Ripuaria, Ch. 58 (60), 21;
Sohm, Eheschliessung, 48, 49, notes; I. Franken Franzos. Pfandr. 264,
n. 2.

61 Eadmer (Rolls ed.), 7, 8, 25; Dial, de Scacc., II. C. 19; 2
Gesta Hen. II. (Ben. Abbas), 134-137; 3 Roger Hoved. (Rolls ed.),
145; Glanv. VII., C. 18; X., C. 12; i Royal Letters, Henry III.
(Rolls ed.), 308; Bract, i79b. Cf. id. i7Sa, 4o6b, etc.; Reg. Majest.
II., C. 48, 10 ; C. 57, 10 J Abbrev. Plac. 31, col. i (2 Joh.
Norf. rot 21) ; 22 Ass. pi. 70, fol. 101.

EARLY ENGLISH EQUITY 23

proceeded upon in the King's courts, it sufficiently
appears from Glanvill and Bracton that the royal
remedies were only conceded de gratia if ever. 62
The royal remedies were afforded at first only by
way of privilege and exception, and, as I have
already shown, never extended to all the ancient
customs which prevailed in the popular tribunals.
But if the King failed the Church stood ready.
For a long time, and with varying success, it claimed
a general jurisdiction in case of laesio fidei* 3 What-
ever the limit of this vague and dangerous claim
it clearly extended to breach of fides data. And
even after the Church had been finally cut down to
marriages and wills, as shown in the last note, it
retained jurisdiction over contracts incident to such
matters for breach of faith, and, it seems, might
proceed by way of spiritual censure and penance
even in other cases. 64

62 Glanv. X., C. 8; Bract. looa.

63 The fluctuations of the struggle may be traced in the following
passages: "Item generaliter omnes de fidei laesione vel juramenti trans-
gressione quaestiones in joro ecclesiastico tractabanlur!* A.D. 1190.
2 Diceto (Rolls ed.), 87; 2 Matt. Paris, Chron, Maj. (Rolls ed.), 368.
"Placita de debitis quae fide interposita debentur vel absque inter-
positione fidei sint in jmtitw Regis." Const. Clarend. C. 15 ; Glanv.
X., C. 12; Letter of Thomas a Becket to the Pope, A. D. 1167, i Rog.
Hoved. (Rolls ed.), 254. Agreement between Richard and the Nor-
man clergy in 1190, Diceto and Matt. Par. ttbi supra. As to suits for
breach of faith, outside of debts, in the Courts Christian, circa 1200,
Abbrev. Plac. 31, col i (2 Job.), Norf. rot. 21. "Prohibetvr ecclesi-
asticus judex tracture omnes ca-usas contra laicos, nisi sint de matrimonio
vel testamento." A.D. 1247, 4 Matt. Paris (Rolls ed.), 614. Resistance
to this, Annals of Burton (Rolls ed.), 417. 4235 cf. ib. 256. But this
prohibition fixed the boundaries of ecclesiastical jurisdiction.

<* 22 Lib. Ass., pL 70, fol. 101. Cf. Glanv. VII., C. 18, "propter

24 COLLECTED LEGAL PAPERS

Thus the old contracts lingered along into the
reign of Edward III. until the common law had
attained a tolerably definite theory which excluded
them on substantive grounds, and the Chancery had
become a separate Court. The clerical Chancellors
seem for a time to have asserted successfully in a
different -tribunal the power of which they had been
shorn as ecclesiastics, to give a remedy for contracts
for which the ordinary King's Courts afforded none.
But, I think, I have now proved that in so doing they
were not making reforms or introducing new doc-
trines, but were simply retaining some relics of an-
cient custom which had been dropped by the common
law, but had been kept alive by the Church.

mutuam affidationem quae fieri solet" Bract, fol. iysa, 4o6b, 407,
4i2b; Y. B. 38 Hen. VI. 29, pi. 2. But covenant was the only remedy
if the contract had been put in writing; Y. B. 45 Ed. III. 24, pi, 30.

THE LAW

SUFFOLK BAR ASSOCIATION DESTNER,
FEBRUARY 5, 1885*

MR. CHAIRMAN AND GENTLEMEN OF THE BAR:

THE Court and the Bar are too old acquaintances
to speak much to each other of themselves, or of
their mutual relations. I hope I may say we are
too old friends to need to do it. If you did not
believe it already, it would be useless for me to
affirm that, in the judges' half of our common work,
the will at least is not wanting to do every duty of
their noble office; that every interest, every faculty,
every energy, almost every waking hour, is filled with
their work; that they give their lives to it, more than
which they cannot do. But if not of the 'Bench,
shall I speak of the Bar? Shall I ask what a court
would be, unaided? /The law is made by the Bar,
even more than by 1 * the Bench; yet do I need to
speak of the learning and varied gifts that have
given the Bar of this State a reputation throughout
the whole domain of the common law? I think I
need not, nor of its high and scrupulous honor. The
world has its fling at lawyers sometimes, but its very-
denial is an admission. It feels, what I believe to
be the truth, that of all secular professions this has
the highest standards.

* From Speeches (1913), printed by Little, Brown & Co.
35

26 COLLECTED LEGAL PAPERS

And what a profession it is! No doubt every-
thing is interesting when it is understood and seen
in its connection with the rest of things. Every
calling is great when greatly pursued. But what
other gives such scope to realize the spontaneous
energy of one's soul? In what other does one plunge
so deep in the stream of life so share its passions,
its battles, its despair, its triumphs, both as wit-
ness and actor?

But that is not all. What a subject is this in
which we are united this abstraction called the
Law 3 wherein, as in a magic mirror, we see reflected,
not only our own lives, but the lives of all men that
have been! When I think on this majestic theme,
my eyes dazzle. If we are to speak of the law as
our mistress, we who are here know that she is a
mistress only to be wooed with sustained and lonely
passion only to be won by straining all the facul-
ties by which man is likest to a god. Those who,
having begun the pursuit, turn away uncharmed, do
so either because they have not been vouchsafed the
sight of her divine figure, or because they have not
the heart for so great a struggle. To the lover of
the law, how small a thing seern the novelist's tales
of the loves and fates of Daphnis and Chloe! How
pale a phantom even the Circe of poetry, transform-
ing mankind with intoxicating dreams of fiery ether,
and the foam of summer seas, and glowing green-
sward, and the white arms of women! For him no
less a history will suffice than that of the moral
life of his race. For Mm every text that he de-

THE LAW 27

ciphers, every aoubt that he resolves, adds a new
feature to the unfolding panorama of man's destiny
upon this earth. Nor will his task be done until, by
the farthest stretch of human imagination, he has
seen as with his eyes the birth and growth of society,
and by the farthest stretch of reason he has under-
stood the philosophy of its being. When I think
thus of the law, I see a princess mightier than she
who once wrought at Bayeux, eternally weaving into
her web dim figures of the ever-lengthening past
figures too dim to be noticed by the idle, too symbolic
to be interpreted except by her pupils, but to the
discerning eye disclosing every painful step and every
world-shaking contest by which mankind has worked
and fought its way from savage isolation to organic
social life.

But we who are here know the Law even better
in another aspect. We see her daily, not as an-
thropologists, not as students and philosophers, but
as actors in a drama of which she is the providence
and overruling power. When I think of the Law
as we know her in the courthouse and the market,
she seems to me a woman sitting by the wayside,
beneath whose overshadowing hood every man shall
see the countenance of his deserts or needs. The
timid and overborne gain heart from her protecting
smile. Fair combatants, manfully standing to their
rights, see her keeping the lists with the stern and
discriminating eye of even justice. The wretch who
has defied her most sacred commands, and has
thought to creep through ways where she was not,

28 COLLECTED LEGAL PAPERS

finds that his path ends with her, and beholds be-
neath her hood the inexorable face of death.

Gentlemen, I shall say no more. This is not the
moment for disquisitions. But when for the first
time I was called to speak on such an occasion as this,
the only thought that could come into my mind, the
only feeling that could fill my heart, the only words
that could spring to my lips, were a hymn to her in
whose name we are met here to-night to our mis-
tress, the Law.

THE PROFESSION OF THE LAW

CONCLUSION OF A LECTURE DELIVERED TO UNDER-
GRADUATES OF HARVARD UNIVERSITY,
ON FEBRUARY 17, l886 *

AND now, perhaps, I ought to have done. But I
know that some spirit of fire will feel that his main
question has not been answered. He will ask. What
is all this to my soul? You do not bid me sell
my birthright for a mess of pottage; what have you
said to show that I can reach my own spiritual pos-
sibilities through such a door as this? How can the
laborious study of a dry and technical system, the
greedy watch for clients and practice of shopkeepers'
arts, the mannerless conflicts over often sordid inter^
ests, make out a life? Gentlemen, I admit at once
that these questions are not futile, that they may
prove unanswerable, that they have often seemed
to me unanswerable. And yet I believe there is an
answer. They are the same questions that meet
you in any form of practical life. If a man has
the soul of Sancho Panza, the world to him will be
Sancho Panza's world; but if he has the soul of an
idealist, he will make I do not say find his
world ideal. Of course, the law is not the place
for the artist or the poet. The law is the calling of

* From Speeches (1913), printed by Little, Brown & Co.
29

3 o COLLECTED LEGAL PAPERS

thinkers. But to those who believe with me that
not the least godlike of man's activities is the large
survey of causes, that to know is not less than to
feel, I say and I say no longer with any doubt
that a man may live greatly in the law as well as
elsewhere; that there as well as elsewhere his thought
may find its unity in an infinite perspective; that
there as well as elsewhere he may wreak himself
upon life, may drink the bitter cup of heroism, may
wear his heart out after the unattainable. All that
life offers any man from which to start his thinking
or his striving is a fact. And if this universe is
one universe, if it is so far thinkable that you can
pass in reason from one part if it to another, it does
not matter very much what that fact is. For every
fact leads to every other by the path of the air.
Only men do not yet see how, always. And your
business as thinkers is to make plainer the way from
some thing to the whole of things; to show the
rational connection between your fact and the frame
of the universe. If your subject is law, the roads
are plain to anthropology, the science of man, to
political economy, the theory of legislation, ethics,
and thus by several paths to your final view of life.
It would be equally true of any subject. The only
difference is in the ease of seeing the way. To be
master of any branch of knowledge, you must master 1
those which lie next to it; and thus to know any-
thing you must know all.

Perhaps I speak too much the language of intellec-
tual ambition. I cannot but think that the scope

THE PROFESSION OF THE LAW 31

for intellectual, as for physical adventure, is narrow-
ing. I look for a future in which the ideal will be
content and dignified acceptance of life, rather than
aspiration and the passion for achievement. I see
already that surveys and railroads have set limits
to our intellectual wildernesses that the lion and
the bison are disappearing from them, as from
Africa and the no longer boundless West. But that
undelightful day which I anticipate has not yet come.
The human race has not changed, I imagine, so much
between my generation and yours but that you still
have the barbaric thirst for conquest, and there is
still something left to conquer. There are fields still
open for occupation in the law, and there are roads
from them that will lead you where you will.

But do not think I am pointing you to flowery
paths and beds of roses to a place where brilliant
results attend your work, which shall be at once
easy and new. No result is easy which is worth
having. Your education begins when what is called
your education is over when you no longer are
stringing together the pregnant thoughts, the "jewels
five-words-long," which great men have given their
lives to cut from the raw material, but have begun
yourselves to work upon the raw material for results
which you do not see, cannot predict, and which may
be long in coming when you take the fact which
life offers you for your appointed task. No man
has earned the right to intellectual ambition until
he has learned to lay his course by a star which he
has never seen to dig by the divining rod for

32

springs he may never reach. In saying this s

1 point to that which will make your study heroic*
For I say to yon In all sadness of conviction^ that
to great thoughts you must be heroes as well

as Idealists, Only when you have worked alone
you have felt around you a black gulf of soli-
more isolating than that which surrounds the
dying man, and in hope and in despair have trusted
to your own unshaken will then only will you have
achieved. Thus only can you gain the secret iso
lated joy of the thinker, who knows that, a hundred
years after lie is dead and forgotten, men who never
heard of him will be moving to the measure of his
thought the subtile rapture of a postponed power,
which the world knows not because it has no external
trappings, but which to his prophetic vision is more
real than that which commands an army. And if
this joy should not be yours, still it is only thus that
you can know that you have done what it lay in
you to do can say that you have lived, and be
ready for the end.

ON RECEIVING DEGREE OF

DOCTOR OF LAWS

YALE UNIVERSITY COMMENCEMENT^
JUNE 30, 1886 *

MR. PRESIDENT AND GENTLEMEN:

I KNOW of no mark of honor which this country
has to offer that I should value so highly as this
which you have conferred upon me. I accept it
proudly as an accolade, like the little blow upon the
shoulder from the sword of a master of war which
in ancient days adjudged that a soldier had won his
spurs and pledged his life to decline no combat in
the future.

The power of honor to bind men's lives is not less
now than it was in the Middle Ages. Now as then
it is the breath of our nostrils; it is that for which
we live, for which, if need be, we are willing to die.
It is that which makes the man whose gift is the
power to gain riches sacrifice health and even life
to the pursuit. It is that which makes the scholar
feel that he cannot afford to be rich.

One would sometimes think, from the speech of
young men, that things had changed recently, and
that indifference was now the virtue to be cultivated.
I never heard any one profess indifference to a boat
race. Why should you row a boat race? Why

* From Speeches (1913), printed by Little, Brown & Co.
33

34 COLLECTED LEGAL PAPERS

endure long months of pain In preparation for a fierce
half -hour that will leave you all but dead? Does
any one ask the question? Is there any one who
would not go through all its costs, and more, for the
moment when anguish breaks Into triumph or
even for the glory of having nobly lost? Is life less
than a boat race? If a man will give all the blood
in his body to win the one, will he not spend all the
might of his soul to prevail in the other?

I know, Mr. President, that there is a motive above
even honor which may govern men's lives. I know
that there are some rare spirits who find the inspira-
tion of every moment, the aim of every act, in holi-
ness. I am enough of a Puritan, I think, to conceive
the exalted joy of those who look upon themselves
only as instruments in the hands of a higher power to
work out its designs. But I think that most men do
and must reach the same result under the illusion of
self-seeking. If the love of honor is a form of that
illusion, it is no ignoble one. If it does not lift a
man on wings to the sky, at least it carries him above
the earth and teaches him those high and secret
pathways across the branches of the forest the
travellers on which are only less than winged.

Not the least service of this great University and
its sister from which I come is, that by their separate
teaching and by their mutual rivalry they have
fostered that lofty feeling among their graduates.
You have done all that a university can do to fan
the spark in me. I will try to maintain the honor
you have bestowed.

THE USE OF LAW SCHOOLS*

ORATION BEFORE THE HARVARD LAW SCHOOL ASSOCI-
ATION, AT CAMBRIDGE, NOVEMBER 5, 1 886, ON
THE 25OTH ANNIVERSARY OF HARVARD
UNIVERSITY

IT Is not wonderful that the graduates of the Law
School of Harvard College should wish to keep alive
their connection with it. About three quarters of
a century ago it began with a Chief Justice of the
Supreme Court of Massachusetts for its Royall Pro-
fessor. A little later, one of the most illustrious
judges who ever sat on the United States Supreme
Bench Mr. Justice Story accepted a professor-
ship in it created for him by Nathan Dane. And
from that time to this it has had the services of great
and famous lawyers; it has been the source of a
large part of the most important legal literature
which the country has produced; it has furnished a
world-renowned model in its modes of instruction;
and it has had among its students future chief jus-
tices and justices, and leaders of state bars and of
the national bar too numerous for me to thrill you
with the mention of their names.

It has not taught great lawyers only. Many who
have won fame in other fields began their studies

* From Speeches (1913), printed by Little, Brown & Co.
SS

3 6 COLLECTED LEGAL PAPERS

here. Sumner and Phillips were among the Bach-
elors of 1834. The orator whom we shall hear in a
day or two appears in the list of 1840 alongside of
William Story, of the Chief Justice of this State, and
of one of the Associate Justices, who is himself not
less known as a soldier and as an orator than he is
as a judge. Perhaps, without revealing family
secrets, I may whisper that next Monday's poet also
tasted our masculine diet before seeking more easily
digested, if not more nutritious, food elsewhere.
Enough. Of course we are proud of the Harvard
Law School. Of course we love every limb of Har-
vard College. Of course we rejoice to manifest our
brotherhood by the symbol of this Association.

I will say no more for the reasons of our coming
together. But by your leave I will say a few words
about the use and meaning of law schools, especially
of our law school, and about its methods of instruc-
tion, as they appear to one who has had some occa-
sion to consider them.

A law school does not undertake to teach success.
That combination of tact and will which gives a man
immediate prominence among his fellows comes from
nature, not from instruction; and if it can be helped
at all by advice, such advice is not offered here. It
might be expected that I should say, by way of
natural antithesis, that what a law school does under-
take to teach is law. But I am not ready to say
even that, without a qualification. It seems to me
that nearly all the education which men can get from
others is moral, not intellectual. The main part

THE USE OF LAW SCHOOLS 37

of intellectual education is not the acquisition of
facts, but learning how to make facts live. Culture,
in the sense of fruitless knowledge, I for one abhor.
The mark of a master is, that facts which before
lay scattered in an inorganic mass, when he shoots
through them the magnetic current of his thought,
leap into an organic order, and live and bear fruit.
But you cannot make a master by teaching. He
makes himself by aid of his natural gifts.

Education, other than self -education, lies mainly
in the shaping of men's interests and aims. If you
convince a man that another way of looking at things
is more profound, another form of pleasure more
subtile than that to which he has been accustomed
if you make him really see it the very nature
of man is such that he will desire the profounder
thought and the subtiler joy. So I say the business
of a law school is not sufficiently described when
you merely say that it is to teach law, or to make
lawyers. It is to teach law in the grand manner,
and to make great lawyers.

Our country needs such teaching very much. I
think we should all agree that the passion for
equality has passed far beyond the political or even
the social sphere. We are not only unwilling to
admit that any class or society is better than that
in which we move, but our customary attitude
towards every one in authority of any kind is that
he is only the lucky recipient of honor or salary
above the average, which any average man might as
well receive as he. When the effervescence of demo-

3 8 COLLECTED LEGAL PAPERS

cratic negation extends its workings beyond the
abolition of external distinctions of rank to spiritual
things when the passion for equality is not content
with founding social intercourse upon universal
human sympathy, and a community of interests in
which all may share, but attacks the lines of Nature
which establish orders and degrees among the souls
of men they are not only wrong, but ignobly
wrong. Modesty and reverence are no less virtues
of freemen than the democratic feeling which will
submit neither to arrogance nor to servility.

To inculcate those virtues, to correct the ignoble
excess of a noble feeling to which I have referred,
I know of no teachers so powerful and persuasive
as the little army of specialists. They carry no ban-
ners, they beat no drums; but where they are, men
learn that bustle and push are not the equals of
quiet genius and serene mastery. They compel
others who need their help, or who are enlightened
by their teaching, to obedience and respect. They
set the examples themselves; for they furnish in the
intellectual world a perfect type of the union of
democracy with discipline. They bow to no one who
seeks to impose his authority by foreign aid; they
hold that science like courage is never beyond the
necessity of proof, but must always be ready to prove
itself against all challengers. But to one who has
shown himself a master, they pay the proud rever-
ence of men who know what valiant combat means,
and who reserve the right to combat against their
leader even, if he should seem to waver in the service
of Truth, their only queen.

THE USE OF LAW SCHOOLS 39

In the army of which I speak, the lawyers are
not the least important corps. For all lawyers are
specialists. Not in the narrow sense in which we
sometimes use the word in the profession of per-
sons who confine themselves to a particular branch
of practice, such as conveyancing or patents but
specialists who have taken all law to be their prov-
ince; specialists because they have undertaken
to master a special branch of human knowledge
a branch, I may add, which is more immediately
connected with all the highest interests of man thar
any other which deals with practical affairs.

Lawyers, too, were among the first specialists to
be needed and to appear in America. And I believe
it would be hard to exaggerate the goodness of their
influence in favor of sane and orderly thinking.
But lawyers feel the spirit of the times like other
people. They, like others, are forever trying to dis-
cover cheap and agreeable substitutes for real things.
I fear that the bar has done its full share to exalt
that most hateful of American words and ideals,
"smartness," as against dignity of moral feeling and
profundity of knowledge. It is from within the bar,
not from outside, that I have heard the new gospel
that learning is out of date, and that the man for
the times is no longer the thinker and the scholar,
but the smart man, unencumbered with other artillery
than the latest edition of the Digest and the latest
revision of the Statutes.

The aim of a law school should be, the aim of
the Harvard Law School has been, not to make men

4 o

smart, but to make them wise In their calling to
start them on a road which will lead them to the
abode of the masters, A law school should be at
once the workshop and the nursery of specialists in
the sense which I have explained. It should obtain
for teachers men in each generation who are produc-
ing the best work of that generation. Teaching
should not stop, but rather should foster, production.
The "enthusiasm of the lecture-room/' the con-
tagious interest of companionship, should make the
students partners in their teachers' work. The fer-
ment of genius in its creative moment is quickly
imparted. If a man is great, he makes others believe
in greatness; he makes them incapable of mean ideals
and easy self-satisfaction. His pupils will accept no
substitute for realities; but at the same time they
learn that the only coin with which realities can be
bought is life,

Our School has been such a workshop and such a
nursery as I describe. What men it has turned out
I have hinted already, and do not need to say; what
works it has produced is known to all the world.
From ardent cooperation of student and teacher have
sprung Greenleaf on Evidence, and Stearns on Real
Actions, and Story's epoch-making Commentaries,
and Parsons on Contracts, and Washburn on Real
Property; and, marking a later epoch, Langdell on
Contracts and on Equity Pleading, and Ames on
Bills and Notes, and Gray on Perpetuities, and I
hope we sooa may add Thayer on Evidence. You
will notice that these books are very different in

THE USE OF 41

character from one another, but you will notice also
how many of them have this in common that they
have marked and largely made an epoch.

There are plenty of men nowadays of not a hun-
dredth part of Story 5 s power who could write as
good statements of the law as his, or better* And
when some mediocre fluent book has been printed,
how often have we heard it proclaimed,, "Lo ? here
is a greater 'than Story!" But if you consider the
state of legal literature when Story began to write,
from what wells of learning the discursive
streams of his speech were fed, I think you will be
inclined to agree with me that he has done more than
any other English-speaking man in this century to
make the law luminous and easy to understand.

But Story's simple philosophizing has ceased to
satisfy men's minds. I think it might be said with
safety, that no man of his or of the succeeding genera-
tion could have stated the law in a form that de-
served to abide, because neither his nor the succeed-
ing generation possessed or could have possessed the
historical knowledge, had made or could have made
the analyses of principles, which are necessary before
the cardinal doctrines of the law can be known and
understood in their precise contours and in their
innermost meanings.

The new work is now being done. Under the
influence of Germany, science is gradually drawing
legal history into its sphere. The facts are being
scrutinized by eyes microscopic In intensity and
panoramic in scope. At the same time, under the

42 COLLECTED LEGAL PAPERS

influence of our revived interest in philosophical
speculation, a thousand heads are analyzing and
generalizing the rules of law and the grounds on
which they stand. The law has got to be stated
over again; and I venture to say that in fifty years
we shall have it in a form of which no man could
have dreamed fifty years ago. And now I venture
to add my hope and my belief, that, when the day
comes which I predict, the Professors of the Har-
vard Law School will be found to have had a hand
in the change not less important than that which
Story has had in determining the form of the text-
books of the last half-century.

Corresponding to the change which I say is taking
place, there has been another change in the mode
of teaching. How far the correspondence is con-
scious, I do not stop to inquire. For whatever
reason, the Professors of this School have said to
themselves more definitely than ever before, We will
not be contented to send forth students with nothing
but a rag-bag full of general principles a throng
of glittering generalities, like a swarm of little bodi-
less cherubs fluttering at the top of one of Correg-
gio's pictures. They have said that to make a
general principle worth anything you must give
it a body; you must show in what way and how
far it would be applied actually in an actual system;
you must show how it has gradually emerged as the
felt reconciliation of concrete instances no one of
which established it in terms. Finally, you must
show its historic relations to other principles, often

THE USE OF LAW SCHOOLS 43

of very different date and origin, and thus set it in
the perspective without which its proportions will
never be truly judged.

In pursuance of these views there have been sub-
stituted for text-books more and more, so far as
practicable, those books of cases which were received
at first by many with a somewhat contemptuous
smile and pitying contrast of good old days, but
which now, after fifteen years, bid fair to revolution-
ize the teaching both of this country and of England.

I pause for a moment to say what I hope it is
scarcely necessary for me to say that in thus giv-
ing in my adhesion to the present methods of instruc-
tions I am not wanting in grateful and appreciative
recollection (alas! it can be only recollection now)
of the earlier teachers under whom I studied. In
my day the Dean of this School was Professor Parker,
the ex-Chief Justice of New Hampshire, who I
think was one of the greatest of American judges,
and who showed in the chair the same qualities that
had made him famous on the bench. His associates
were Parsons, almost if not quite a man of genius,
and gifted with a power of impressive statement
which I do not know that I have ever seen equalled;
and Washburn, who* taught us all to realize the
meaning of the phrase which I already have quoted
from Vangerow, the "enthusiasm of the lecture-
room." He did more for me than the learning of
Coke and the logic of Fearne could have done with-
out his kindly ardor.

To return, and to say a word more about the

44 COLLECTED LEGAL PAPERS

theory on which these books of cases are used. It
long has seemed to me a striking circumstance, that
the ablest of the agitators for codification, Sir James
Stephen, and the originator of the present mode of
teaching, Mr. Langdell, start from the same premises
to reach seemingly opposite conclusions. The num-
ber of legal principles is small, says in effect Sir
James Stephen, therefore codify them; the number
of legal principles is small, says Mr. Langdell, there-
fore they may be taught through the cases which
have developed and established them. Well, I think
there is much force in Sir James Stephen's argument,
if you can find competent men and get them to under-
take the task; and at any rate I am not now going
to express an opinion that he is wrong. But I am
certain from my own experience that Mr. Langdell
is right; I am certain that when your object is not
to make a bouquet of the law for the public, nor
to prune and graft it by legislation, but to plant its
roots where they will grow, in minds devoted hence-
forth to that one end, there is no way to be com-
pared to Mr. Langdell's way. Why, look at it
simply in the light of human nature. Does not a
man remember a concrete instance more vividly
than a general principle? And is not a principle
more exactly and intimately grasped as the unex-
pressed major premise of the half-dozen examples
which mark its extent and its limits than it can be
in any abstract form of words? Expressed or un-
expressed, is it not better known when you have
studied its embryology and the lines of its growth

THE USE OF LAW SCHOOLS 45

than when you merely see it lying dead before you
on the printed page?

I have referred to my own experience. During
the short time that I had the honor of teaching in
the School, it fell to me, among other things, to
instruct the first-year men in Torts. With some mis-
givings I plunged a dass of beginners straight into
Mr. Ames's collection of cases, and we began to dis-
cuss them together in Mr. LangdelPs method. The
result was better than I even hoped it would be.
After a week or two, when the first confusing novelty
was over, I found that my class examined the ques-
tions proposed with an accuracy of view which they
never could have learned from text-books, and which
often exceeded that to be found in the text-books.
I at least, if no one else, gained a good deal from our
daily encounters.

My experience as a judge has confirmed the belief
I formed as a professor. Of course a young man
cannot try or argue a case as well as one who has
had years of experience. Most of you also would
probably agree with me that no teaching which a
man receives from others at all approaches in im-
portance what he does for himself, and that one
who simply has been a docile pupil has got but a very
little way. But I do think that in the thorough-
ness of their training, and in the systematic char-
acter of their knowledge, the young men of the
present day start better equipped when they begin
their practical experience than it was possible for
their predecessors to have been. And although no

46 COLLECTED LEGAL PAPERS

school can boast a monopoly of promising young
men, Cambridge, of course, has its full proportion
of them at our bar; and I do think that the methods
of teaching here bear fruits in their work.

I sometimes hear a wish expressed by the im-
patient, that the teaching here should be more practi-
cal. I remember that a very wise and able man said
to a friend of mine when he was beginning his pro-
fessional life, "Don't know too much law, 77 and I
think we all can imagine cases where the warning
would be useful. But a far more useful thing is
what was said to me as a student by one no less wise
and able afterwards my partner and always my
friend when I was talking as young men do about
seeing practice, and all the other things which seemed
practical to my inexperience, "The business of a
lawyer is to know law.' 7 The professors of this Law
School mean to make their students know law.
They think the most practical teaching is that which
takes their students to the bottom of what they seek
to know. They therefore mean to make them master
the common law and equity as working systems, and
think that when that is accomplished they will have
no trouble with the improvements of the last half-
century. I believe they are entirely right, not only
in the end they aim at, but in the way they take
to reach that end.

Yes, this School has been, is, and I hope will be,
a centre where great lawyers perfect their achieve-
ments, and from which young men, even more in-
spired by their example than instructed by their

THE USE OF LAW SCHOOLS 47

teaching, go forth in their turn, not to imitate what
their masters have done, but to live their own lives
more freely for the ferment imparted to them here,
The men trained in this School may not always be
the most knowing in the ways of getting on. The
noblest of them must often feel that they are com-
mitted to lives of proud dependence the depend-
ence of men who command no factitious aids to suc-
cess, but rely upon unadvertised knowledge and
silent devotion; dependence upon finding an appre-
ciation which they cannot seek, but dependence
proud in the conviction that the knowledge to which
their lives are consecrated is of things which it con-
cerns the world to know. It is the dependence of
abstract thought, of science, of beauty, of poetry and
art, of every flower of civilization, upon finding a
soil generous enough to support it. If it does not,
it must die. But the world needs the flower more
than the flower needs life.

I said that a law school ought to teach law in the
grand manner; that it had something more to do
than simply to teach law. I think we may claim for
our School that it has not been wanting in greatness.
I once heard a Russian say that in the middle class
of Russia there were many specialists; in the upper
class there were civilized men. Perhaps in America,
for reasons which I have mentioned, we need special-
ists even more than we do civilized men. Civilized
men who are nothing else are a little apt to think
that they cannot breathe the American atmosphere.
But if a man is a specialist, it is most desirable that

48 COLLECTED LEGAL PAPERS

he should also be civilized; that he should have laid
in the outline of the other sciences, as well as the
light and shade of his own; that he should be reason-
able, and see things in their proportion. Nay, more,
that he should be passionate, as well as reasonable
that he should be able not only to explain, but to
feel; that the ardors of intellectual pursuit should
be relieved by the charms of art, should be succeeded
by the joy of life become an end in itself.

At Harvard College is realized in some degree the
palpitating manifoldness of a truly civilized life. Its
aspirations are concealed because they are chastened
and instructed; but I believe in my soul that they
are not the less noble that they are silent. The
golden light of the University is not confined to the
undergraduate department; it is shed over all the
schools. He who has once seen it becomes other
than he was, forevermore. I have said that the best
part of our education is moral. It is the crowning
glory of this Law School that it has kindled in many
a heart an inextinguishable fire.

NOTE. The orator referred to above was James
Russell Lowell; the poet was Oliver Wendell Holmes.

AGENCY*

I PROPOSE in these lectures to study the theory of
agency at common law, to the end that it may be
understood upon evidence, and not merely by con-
jecture, and that the value of its principles may be
weighed intelligently. I first shall endeavor to show
why agency is a proper title in the law. I then shall
give some general reasons for believing that the series
of anomalies or departures from general rule which are
seen wherever agency makes its appearance must be
explained by some cause not manifest to common
sense alone; that this cause is, in fact, the survival
from ancient times of doctrines which in their earlier
form embodied certain rights and liabilities of heads
of families based on substantive grounds which have
disappeared long since, and that in modern days
these doctrines have been generalized into a fiction,
which, although nothing in the world but a form of
words, has reacted upon the law and has tended to
carry its anomalies still farther. That fiction is, of
course, that, within the scope of the agency, prin-
cipal and agent are one. I next shall examine the
early law of England upon every branch of the sub-
ject tort, contract, possession, ratification and
show the working of survival or fiction in each. If

* Harvard Law Review, Vol. IV. (1891).
49

50 COLLECTED LEGAL PAPERS

I do not succeed in reducing the law of all these
branches to a common term, I shall try to show that
at least they all equally depend upon fiction for their
present existence. I shall prove incidentally that
agency in its narrower sense presents only a special
application of the law of master and servant, and
that the peculiar doctrines of both are traceable to
a common source. Finally I shall give my reasons
for thinking that the whole outline of the law is the
resultant of a conflict at every point between logic
and good sense the one striving to work fiction out
to consistent results, the other restraining and at
last overcoming that effort when the results become
too manifestly unjust.

A part of my task has been performed and my
general view indicated in my book on the Common
Law. It remains to discuss the matter systemat-
ically and in detail, giving due weight to the many
difficulties or objections which are met with in the
process.

My subject extends to the whole relation of
master and servant it is not confined to any one
branch; so that when I choose the title "Agency,"
I do not use it in the strict sense just referred to,
but as embracing everything of which I intend to

treat.

The first question proposed is why agency is a
proper title in the law. That is to say, Does agency
bring into operation any new and distinct rules of
law? Do the facts which constitute agency have at-
tached to them legal effects which are peculiar to it,

AGENCY 51

or is the agency only a dramatic situation to which
principles of larger scope are applied? And if
agency has rules of its own incapable of being fur-
ther generalized, what are they?

If the law went no farther than to declare a man
liable for the consequences of acts specifically com-
manded by him with knowledge of circumstances
under which those consequences were the natural
results of those acts, it would need no explanation
and introduce no new principle. There may have
been some difficulty in arriving at this conclusion
when the intervening agent was a free person and
himself responsible. Speaking without special in-
vestigation, I do not remember any case in early
law in which one could charge himself thus in con-
tract or even in tort. Taking the allied case of joint
trespassers, although it long has been settled that
each wrong-doer is liable for the entire damages, the
objection that "the battery of one cannot be the
battery of the other" prevailed as late as James I. 1
It is very possible that liability even for the com-
manded acts of a free person first appeared as an
extension of the liability of an owner for similar acts
by his slave.

But however this may be, it is plain good sense
to hold people answerable for wrongs which they
have intentionally brought to pass, and to recognize
that it is just as possible to bring wrongs to pass
through free human agents as through slaves, ani-
mals, or natural forces. This is the true scope and

* Sampson v. Cranfield, I Bustr. 157 (T. 9 Jac.).

52 COLLECTED LEGAL PAPERS

meaning of "Qui facit per alium facit per se" and

the English law has recognized that maxim as far
back as it is worth while to follow it. 2 So it is only
applying the general theory of tort to hold a man
liable if he commands an act of which the natural
consequence, under the circumstances known to him,
is harm to his neighbor, although he has forbidden
the harm. If a trespass results, it is as much the
trespass of the principal as if it were the natural,
though unwished for, effect of a train of physical
causes. 3 In such cases there is nothing peculiar to
master and servant; similar principles have been
applied where independent contractors were em-
ployed. 4

No additional explanation is needed for the case
of a contract specifically commanded. A difficulty
has been raised concerning cases where the agent has
a discretion as to the terms of the contract, and it
has been called "absurd to maintain that a contract
which in its exact shape emanates exclusively from
a particular person is not the contract of such person
[i.e., the agent], but is the contract of another." 5
But I venture to think that the absurdity is the other

2 In Tort: Y. B. 32 Ed. I, 318, 320 (Harwood) ; 22 Ass. pi.
43, fol. 94; ii Hen. IV. 90, pi. 47; 9 Hen. VI. S3> pi. 37; 21 Hen.
VI, 39; 4 Ed. TV. 36; Dr. and Stud., II., C. 42; Seaman and Brown-
ing's Case, 4 Leon. 123, pi. 249 (M. 31 Eliz.). Conveyance: Fitz. Abr.
Annuitie, pi. 51 (H. 33, Ed. I.), where the maxim is quoted. Account:
4 Inst. 109.

* Gregory v. Piper, 9 B. & C. 59*. Ci The Common Law, 535
54, and Lect 3 and 4.

4 Bower v. Peate, i, Q. B. D. 321.

e Thol, Handelsrecht, 70, cited in Wharton Agency, 6.

AGENCY S3

way, and that there Is no need of any more complex
machinery in such a case than where the agent is
a mere messenger to express terms settled by his
principal in every detail. Suppose that the principal
agrees to buy a horse at a price fixed by another. The
principal makes the contract, not the referee who
settles the price. If the agreement is communicated
by messenger, it makes no difference. If the mes-
senger is himself the referee, the case is still the same.
But that is the case of an agent with discretionary
powers, no matter how large they may be. So far as
he expresses his principal's assent to be bound to
terms to be fixed by the agent, he is a mere messenger;
in fixing the terms he is a stranger to the contract,
which stands on the same footing as if it had been
made before his personal function began. The
agent is simply a voice affording the marks provided
by the principal's own expression of what he under-
takes. Suppose a wager determined in amount as
well as event by the spinning of a teetotum, and to
be off if numbers are turned up outside certain limits;
is it the contract of the teetotum?

If agency is a proper title of our corpus juris, its
peculiarities must be sought in doctrines that go
farther than any yet mentioned. Such doctrines are
to be found in each of the great departments of the
law. In tort, masters are held answerable for con-
duct on the part of their servants, which they not
only have not authorized, but have forbidden. In
contract, an undisclosed principal may bind or may
be bound to another, who did not know of his very

54 COLLECTED LEGAL PAPERS

existence at the time he made the contract. By a
few words of ratification a man may make a tres-
pass or a contract his own in which he had no part
in fact. The possession of a tangible object may be
attributed to him although he never saw it, and may
be denied to another who has it under his actual
custody or control. The existence of these rules is
what makes agency a proper title in the law.

I do not mean to assume in advance that these
rules have a common origin because they are clus-
tered round the same subject. It would be possible
to suggest separate reasons for each, and going
farther still, to argue that each was no more than
an application, even though a misapplication, of
general principles.

Thus, in torts it is sometimes said that the liability
of the master is "in effect for employing a careless
servant," repeating the reason offered by the pseudo-
philosophy of the Roman jurists for an exceptional
rule introduced by the praetor on grounds of public
policy. 8 This reason is shown to be unsound by the
single fact that no amount of care in selection will
exonerate the master; 7 but still it might be argued
that, whether right or wrong, this or some other
notion of policy had led to the first of the rules which
I selected as a peculiar, and that at most the liability
of a master for his servant's torts is only a mistaken
conclusion from the general theory of tort.

6 Parke, B., in Sharrod v. London & N. W. Ry. Co., 4 Exch. 580,
585 (1849) ; i Austin, Jurisprudence, Lect. 26, 3d Ed., p. 513. Cf. The
Common Law, 15, 16.

7 Dansey v. Richardson, 3 El. & Bl., 144, 161.

AGENCY SS

Then with regard to undisclosed principals in con-
tract, it might be said that it was no hardship to
hold a man bound who had commanded his servant
to bind him. And as to the other and more difficult
half of the doctrine, the right of an undisclosed
principal to sue, it might be observed that it was first
asserted in cases of debt, 8 where the principal's goods
were the consideration of the liability, and that the
notion thus started was afterwards extended to other
cases of simple contract. Whether the objection to
the analogy and to the whole rule were duly con-
sidered or not, it might be urged, there is no connec-
tion other than a purely dramatic one between the
law of agency in torts and in contracts, or between
the fact of agency and the rule, and here, as there,
nothing more is to be found than a possibly wrong
conclusion from the general postulates of the depart-
ment of law concerned.

Ratification, again, as admitted by us, the argu-
ment would continue, merely shows that the Roman
maxim "ratihabitio mandate* comparatur" has be-
come imbedded in our law, as it has been from the
time of Bracton.

Finally, the theory of possession through servants
would be accounted for by the servant's admission
of his master's present right to deal with the thing
at will, and the absence of any claim or intent to
assert a claim on his part, coupled with the presence
of such a claim on the part of the master.

Scrimshire v. Alderton, 2 Strange, 1182 (H. 16 G. II). Cf. Gur-
ratt v. Cullum (T. 9 Anne, B.R.), stated in Scott v. Surman, Wffles,
400, at p. 405 (H. 16 G. H.) and in BuUer, N. P. 42.

S 6 COLLECTED LEGAL PAPERS

But the foregoing reasoning is wholly inadequate
to justify the various doctrines mentioned, as I have
shown in part and as I shall prove in detail hereafter.
And assuming the inadequacy to be proved, it can-
not but strike one as strange that there should run
through all branches of the law a tendency to err
in the same direction. If, as soon as the relation of
master and servant comes in, we find the limits of
liability for, or gain by, others' acts enlarged beyond
the scope of the reasons offered or of any general
theory, we not only have good ground for treating
that relation separately, but we fairly may suspect
that it is a cause as well as a concomitant of the ob-
served effects.

Looking at the whole matter analytically it is easy
to see that if the law did identify agents with prin-
cipals, so far as that identification was carried the
principal would have the burden and the benefit of
his agent's torts, contracts, or possession. So, fram-
ing a historical hypothesis, if the starting-point of the
modern law is the patria potestas, a little study will
show that the fiction of identity is the natural growth
from such a germ.

There is an antecedent probability that the patria
potestas has exerted an influence at least upon exist-
ing rules. I have endeavored to prove elsewhere
that the unlimited liability of an owner for the torts
of his slave grew out of what had been merely a
privilege of buying him off from a surrender to the
vengeance of the offended party, in both the early
Roman and the early German law. I have shown,

AGENCY 57

also, how the unlimited liability thus established was
extended by the praetor in certain cases to the mis-
conduct of free servants. 9 Of course it is unlikely
that the doctrines of our two parent systems should
have been without effect upon their offspring, the
common law.

The Roman law, it is true, developed no such
universal doctrines of agency as have been worked
out in England. Only innkeepers and shipowners
(nautae, caupones, stabularii) were made answerable
for the misconduct of their free servants by the
praetor's edict. It was not generally possible to
acquire rights or to incur obligations through the acts
of free persons. 10 But, so far as rights of property,
possession, 11 or contract 12 could be acquired through
others not slaves, the law undoubtedly started from
slavery and the patria potestas.

It will be easy to see how this tended toward a
fictitious identification of agent with principal, al-
though within the limits to which it confined agency
the Roman law had little need and made little use
of the fiction. Ulpian says that the act of the family
cannot be called the act of the paterfamilias unless
it is done by his wish. 13 But as all the family rights
and obligations were simply attributes of the per-
sona of the family head, the summary -expression for
the members of the family as means of loss or gain

9 The Common Law, 9, 15-20.
1 Inst 2, 9, 5J B. 44* 7 ; ty 45, i, 126, 2.

11 Inst 2, 9, esp. II 4, 5- Cf. IX 41, i, 53-

12 Inst 3, 17; B. 41, i, 53J !> 45, *, 3*, *7*
is D. 43, 16, i., ||ii-i3.

58 COLLECTED LEGAL PAPERS

would be that they sustained that persona) pro hac
vice. For that purpose they were one with the
paterfamilias. Justinian's Institutes tell us that the
right of a slave to receive a binding promise is de-
rived ex persona domini.^ And with regard to free
agents, the commentators said that in such instances
two persons were feigned to be one. 15

Such a formula, of course, is only derivative. The
fiction is merely a convenient way of expressing rules
which were arrived at on other grounds. The
Roman praetor did not make innkeepers answer-
able for their servants because "the act of the serv-
ant was the act of the master," any more than be-
cause they had been negligent in choosing them. He
did so on substantive grounds of policy because of
the special confidence necessarily reposed in inn-
keepers. So when it held that a slave's possession
was his owner's possession, the practical fact of the
master's power was at the bottom of the decision. 16

But when such a formula is adopted, it soon
acquires an independent standing of its own. In-
stead of remaining only a short way of saying that
when from policy the law makes a master responsible
for his servant, or because of his power gives him the
benefit of his slave's possession or contract, it treats
him to that extent as the tort-feasor, possessor, or
contractee, the formula becomes a reason in itself for

14 Inst. 3, 17, pr. 1 8, in the older editions.

15 D. 45, i, 38, 17, Elzevir ed., Gothofred. note 74, Cf. D. 44, a,
4, note 17.

16 The Common Law, 228.

AGENCY 59

making the master answerable and for giving Mm
rights. If "the act of the servant is the act of the
master/' or master and servant are "considered as
one person/ 5 then the master must pay for the act
if it is wrongful, and has the advantage of it if it is
right. And the mere habit of using these phrases,
where the master is bound or benefited by his ser-
vant's act, makes it likely that other cases will be
brought within the penumbra of the same thought
on no more substantial ground than the way of think-
ing which the words have brought about.

I shall examine successively the English author-
ities with regard to agency in tort, contract, ratifi-
cation, and possession. But some of those author-
ities are of equal importance to every branch of
the proposed examination, and will prove in advance
that the foregoing remarks are not merely hypothet-
ical. I therefore begin with citations sufficient to
establish that family headship was recognized as a
factor in legal rights and duties; that this notion of
headship was extended by analogy so as to cover the
relation of a master to freemen filling a servile place
for the time being, and that the relations thus em-
braced were generalized under the misleading fiction
of identity.

The familia, Bracton says, embraces "those who
are regarded in the light of serfs, such as, etc. So,
too, as well freemen as serfs, and those over whom
one has the power of command." 17

17 "Et etiam famUiae appettatio eos complectitur qui loco servorum
kabentur, stcut sunt mercenary et conductitii. Item tarn liberi quam
servi, et quibus potent imperari." Bract., foL

60 COLLECTED LEGAL PAPERS

In West's Symboleography a work which was
published towards the beginning of the reign of
James L, and which, though mainly a form book,
gives several glimpses of far-reaching insight, we
read as follows:

"The person is he which either agreeth or offend-
eth, and beside him none other.

"And both may be bound either mediately, or
immediately.

"Immediately, if he which is bound doe agree.

"Mediately, when if he, which by nature differeth
from him, but not by law, whereby as by some bond
he is fained to be all one person, doth contract, or
offend, of which sort in some cases be those which
be in our power, as a wife, a bondman, servant, a
factor, an Attourney, or Procurator, exceeding their
authority."

Here we see that the patria potestas is the sub-
stantive ground, that it is extended to cover free
agents, who are not even domestic servants, and
that it finds its formal expression in the fiction of
identity.

So, at the beginning of the next reign, it was said
that an action for fire, due to the negligence of a
wife, or servant, lay "vers patrem jamilias" 19 The
extension of the liability, as shown by West, is some-
times expressed in later books by saying that it is
not confined to cases where the party stands in the

is Lib, I., 3, ad fin. "Of the Fact of Man."

19 Shelley and Barr's Case, I RoU. Abr. 2, pi. 7 (M.I Car.!).

AGENCY 61

relation of paterfamilias to the wrong-doer; 20 but
this only means that the rule extends to other ser-
vants besides domestic servants, and admits the
analogy or starting-point. 21

Every one is familiar with the fiction as applied
to married women. The early law dealt with mar-
ried women on the footing of servants. It called
both wives and servants chattels. 22 The wife was
said to be in the nature of a servant, 23 and husband
and wife were only one person in law. 2 * So far was
this identification carried, so far was the persona of
the wife swallowed up in and made part of the hus-
band's, that whereas, in general, assigns could not
vouch upon a warranty unless they were expressly
mentioned in it, 25 a husband always could vouch
upon a warranty made to his wife before marriage.
By marriage, as was said in Simon Simeon's case
"it vested in the person of the husband." That is
to say, although what actually happened was that
the right to enforce a contract was transferred to a
stranger, in theory of law there was no transfer, be-
cause the stranger had become the same person as
the contractee. 26

20 Bac. Abr., Master and Servant, K; Smith's Master and Servant,
3d ed, 260.

21 Laugher v. Pointer, 5 B. & C, 547, 554 (1826). Cf. Bush t>.
Steinman, I Bos. & P. 404 (1709).

22 Y. B, 19 Hen. VL 3*, pL 59 J 2 RoE. Abr. 546 (D).

23 I Roll. Abr. 2, pi. 7.

2 * Dial, de Scaccario II., Ch. 18.; Bract., fol. 42gb; Y. B. 22 Hen.
VI. 38, pi. 6; Litt. 168, 191; 3 Salk. 46; Com. Dig. Baron 6- Feme
(D) ; i BL Comm. 442.

25 Hie Common Law, 375, n. 2, 401, n. i.

2 Simon Simeon's Case, Y. B. 30 Ed. m 14; sjc. ib. 6; 29 Ed.

62 COLLECTED LEGAL PAPERS

Of course the identification between husband and
wife, although by no means absolute, was far more
complete than that between master and menial ser-
vant, just as in the latter case it went farther than
in that of an agent employed for some particular
transaction. Even in the case of villeins, while the
lord might take advantage of their possession or
their title, he could not take advantage of contracts
or warranties made to them. 27 But the idea and
its historical starting-point were the same through-
out. When considering the later cases, the reader
will remember that it is incontrovertably established
that a wife was on the footing of a servant, that the
consequences of the relation were familiarly ex-
pressed in terms of the fiction of identity, and, there-
fore, that the applicability of this fiction to the
domestic relations generally must have been well
known to the courts long before the date of the
principal decisions, which it will be my task to
interpret.

I now take up the liability of a master for the
torts of his servant at common law. This has been
supposed in England to have been manufactured out
of the whole cloth, and introduced by the decision

HI. 48. I have seen no reason to change the views expressed in The
Common Law, Lecture XL, to meet the suggestions of Prof. Ames in
3 Harv. Law Rev. 388, n. 6. Undoubtedly the letter of credit was
known in the reign of Henry III. i Royal Letters, Hen. III. 315. But
the modern theory of contract applied to letters of credit, in my
opinion, was not the theory on which assigns got the benefit of a
warranty. Norcross v, James, 140 Mass. 188.
2T Y. B. 22 Ass. pi. 27, fol. 93 j Co. Lit.

AGENCY 63

in Michael v. Alestree in the reign of Charles II.
In view of the historical antecedents it would be very
extraordinary if such a notion were correct. I ven-
ture to think that it is mistaken, and that the prin-
ciple has gradually grown to its present form from
beginnings of the earliest date. I also doubt whether
Michael v. Alestree is an example for the principle
in question. It rather seems to me a case in which
the damage complained of was the natural conse-
quence of the very acts commanded by the master,
and which, therefore, as I have said above, needs no
special or peculiar doctrine to account for it. It was
an action on the case against master and servant;
"for that the Defendants in Lincoln' s-Inn Fields, a
place where People are always going to and fro about
their Business, brought a Coach with two ungovern-
able Horses, & eux improvide incaute & absque
debita considerations ineptitudinis loci there drove
them to make them tractable and fit them for a
Coach; and the Horses, because of their Ferocity,
being not to be managed, ran upon the Plaintiff, and
wounded him: The master was absent,"
but both defendants were found guilty. "It was
moved in Arrest of Judgment, That no Sciens is here
laid of the Horses being unruly, nor any Negligence
alledged, but e contra, that the Horses were ungovern-
able: Yet judgment was given for the Plaintiff,
for it is alledged that it was improvide & absque
debita consideration ineptitudinis loci; and it shall
be intended the Master Sent the servant to train the

ss 2 Levinz, 172; S.C. 3 Keble, 650, i Ventris, 295 (T. 28 Car, H),

64 COLLECTED LEGAL PAPERS

Horses there." 29 In other words, although there
was no negligence averred in the mode of driving the
horses at the instant of the accident, but, e contra^
that the horses were ungovernable, which was the
scope of the defendant's objection, there was negli-
gence in driving ungovernable horses for the pur-
pose of breaking them in a public place, and that
was averred, and was averred to have been done
negligently. Furthermore, it was averred to have
been done negligently by the defendant, which was
a sufficient allegation on its face, and would be sup-
ported by proof that the defendant, knowing the
character of the horses, ordered his servant to break
them in a public resort. Indeed, the very charac-
ter of the command (to break horses) imports suffi-
cient knowledge; and when a command is given to
do the specified act complained of, it always may be
laid as the act of the party giving the order. 30

When I come to investigate the true history of
this part of the law, notwithstanding the likelihood
which I have pointed out that it was a continuation
and development of what I have traced in one or
both of the parent systems, I must admit that I am
met with a difficulty. Even in Bracton, who writes
under the full influence of the Roman law, I have
failed to find any passage which distinctly asserts the
civil liability of masters for their servants' torts apart
from command or ratification. There is one text, to
be sure, which seems corrupt as it sU ids and which

29 2 Lev. 172.
* Sup., p. 51, $a.

AGENCY 65

could be amended by conjecture so as to assert it.
But as the best manuscripts in Lincoln's Inn sub-
stantially confirm the printed reading, conjecture
would be out of place. 31

On the other hand, I do find an institution which
may or may not have been connected with the Anglo-
Saxon laws touching the responsibility of masters,
but which, at any rate, equally connects liability of
a different sort with family headship.

At about the time of the Conquest, what was
known as the Frithborh, or frankpledge, either was
introduced or grew greatly in importance. Among
other things, the master was made the pledge of his
servants, to hand them over to justice or to pay the
fine himself. "Omnes qui servientes habent, eorum
sink francplegii" was the requirement of William's
laws. Bracton quotes the similar provisions of Ed-
ward the Confessor, and also says that in some
counties a man is held to answer for the members of
his family. 32 The quasi-criminal liability of master
for man is found as late as Edward II. alongside of
the other rules of frankpledge, with which this dis-
cussion is not concerned. Fitzherbert's Abridg-
ment 33 reads as follows: "Note that if the servant
{sermens} of any lord while in his service (in sermcio
suo existem) commits a felony and is convicted,
although after the felony (the master) has not

81 Bract., fol. lisa.

82 "TenebUur Me, m qvtbwdam partibns, de cujus fuerint fam&to
et manupastu." Bract., fol. i24b; Le., for the persons under his
fatria potestas. LL. Gul. I., C. 52 ; LL. Edw. Cont, C. 21 (al. 20).

8a Corone, pi. 428 (8 Ed. IL It cane).

66 COLLECTED LEGAL PAPERS

received him, he is to be amerced, and the reason
is because he received him 'in bourgh.' " Brae-
ton, in like manner, says that the master is bound
"Emendare" for certain torts of his servant, 34 mean-
ing, as I take it, to pay a fine, not damages.

But true examples of the peculiar law of master
and servant are to be -found before Edward II. The
maxim respondeat superior has been applied to the
torts of inferior officers from the time of Edward I.
to the present day. Thus that chapter of the Statute
of Westminster the Second, 35 which regulates dis-
tresses by sheriffs or bailiffs, makes the officer dis-
regarding its provisions answerable, and then con-
tinues, "si non habeat ballivus unde reddat reddat
superior suus." So a later chapter of the same stat-
ute, after subjecting keepers of jails to an action of
debt for escapes in certain cases, provides that if the
keeper is not able to pay, his superior, who committed
the custody of the jail to him shall be answerable by
the same writ. 3 * So, again, the eighteenth chapter of
the Articuli super Chartas 3T gives a writ of waste to
wards, for waste done in their lands in the king's
hands by escheators or sub-escheators, "against the
escheator for his act (if he have whereof to answer),
and if he have not, his master shall answer (fsi
respoigne son sovereign') by like pain concerning the

84 Bract., fol. isSb, i7ia, b, I72b. Cf. Ducange, "Emenda."

35 St. 13 Ed. I., St. I, Ch. 2, 3.

38 Ch. II. ad finem. "Et si custos gaole non habeat per quod
justicietur vel unde solvat respondeat superior suus qui custodiam
hujusmodi gaole sibi commisit per idem breve"

87 st 28 Ed. I., Ch. 18.

AGENCY 67

damages, as is ordained by the statute for them that
do waste in wardships." A case of the time of Ed-
ward II. interpreting the above statute concerning
jailers is given in Fitzherbert's Abridgment/ 8 and
later similar cases are referred to in Coke's Fourth
Institute. 39

It may be objected that the foregoing cases are
all statutory. But the same principle seems to have
been applied apart from any statute except that
which gave counties the power to elect coroners, to
make the county of Kent answerable to the king for
a coroner's default, as well as in other instances
which will be mentioned later. 40 Moreover, early
statutes are as good evidence of prevailing legal con-
ceptions as decisions are.

But again it may be objected that there were
special grounds of public policy for requiring those
who disposed of public offices of profit to appoint
persons "for whom they will answer at their peril/'
in the words of another similar statute as to clerks
in the King's Courts. 41 It might be said with truth

sa Dette, pi. 172 (M. n Ed. ID.

39 4 Inst. 114; "45 E. 3, 9, 10, Prior datife et removeable suffer
esckape, responded superior. 14 E. 4, Pur insufficiency del bailie
dun libertie respondeat dominus libertatis. Vid. 44 E. 3, 13; So E.
3, 5; 14 H. 4, 22; ii H. 6, 52; 30 H. 6, 32."

40 See the writ of H. 14 Ed. HI, ex parte, Remem. Regis, rot. 9, in
Scacc. in 4 Inst. 114, and less fully in 2 Inst. 175. "Et quia ipse coro-
nator electus erat per comitatum juxta formam statuti, etc., Ua quod
in defectu ejusdem coronatoris totus comitatus ut elector et superior^
etc. (tenetur), habeant regi respondere, praecip. (praeceptum fuit} nunc
vie. quod de terns et tenementis (hominum) kujusmodi tothts comitatus
m battiva sua fieri fac.," etc. See the other references in 4 Inst Ii4t
and further Y. B. 49 Ed. HI. 25, 26, pL 3.

41 St. a Hen. VI., Ch. 10.

68 COLLECTED LEGAL PAPERS

that the responsibility was greater than in the case
of private servants, and it might be asked whether
respondeat superior in its strict sense is not an inde-
pendent principle which is rather to be deemed one
of the causes of the modem law, than a branch from
a common stem. It certainly has furnished us with
one of the inadequate reasons which have been put
forward for the law as it is that somebody must
be held who is able to pay the damages.

The weight of the evidence seems to me to over-
come these objections. I think it most probable
that the liability for under-officers was a special
application of conceptions drawn from the family
and the power of the family head over his servants.
Those conceptions were in existence, as I have shown.
From a very early date, under-officers are called ser-
vants of their superior, as indeed it seems to be
implied that they are, by the word "sovereign" or
even "superior" in the statutes which have been
cited. "Sovereign" is used as synonymous with
master in Dyer. 42 In the Y. B., II Edward IV. i,
pi. i, it is said, "If I make a deputy, I am always
officer, and he performs the office in my right and as
my servant"; and from that day to this, not only
has the same language been repeated, 43 but, as I
shall show, one of the chosen fields for the express

42 Alford v. Eglisfield, Dyer, 23ob, pi. 5<5. The passage will be
cited later in dealing with factors. See also Y. B. 27 Hen. VHL

24, PL 3.

Parkes t>. Mosse, Cro. Elk. 181 (E. 32 Eliz.) ; Wheteley v.
Stone, 2 Roll. Abr. 556, pi. 14; S. C. Hobart, 180; i Bl. Comm.,
34S> 346.

AGENCY 69

use of the fiction of identity is the relation of superior
and under-officer.

Under Edward III. it was held that if an abbot has
a wardship, and a co-canon commits waste, the abbot
shall be charged by it, "for that is adjudged the deed
of the abbot." ** This expression appears to me not
only to apply the rule respondeat superior beyond the
case of public officers, but to adopt the fiction of iden-
tity as a mode of explaining the rule.

An earlier record of the same reign, although it
turned on the laws of Oleron, shows that the King's
Court would in some cases hold masters more strictly
accountable for their servants 5 torts than is even now
the case. A ship-master was held liable in trespass
de bonis asportatis for goods wrongfully taken by
the mariners, and it was said that he was answerable
for all trespasses on board his ship. 45

A nearly contemporaneous statute is worth men*
tioning, although it perhaps is to be construed as
referring to the fines which have been mentioned
above, or to other forfeitures, and not to civil dam-
ages. It reads, "That no merchant nor other, of
what condition that he be, shall lose or forfeit his
goods nor merchandizes for the trespass and for-
feiture of his servant, unless he do it by the command-
ment or procurement of his master, or that he hath
offended in the office in which his master hath set
him, or in other manner, that the master be holden

** Y. B. 49 Ed. HI, 25, 26, pi. 3.

Brevia Regis in Turr. London, T. 24 Ed. EL, No. 45, Bristol,
printed in Molloy, Book 2, Ch. 3, 16.

70 COLLECTED LEGAL PAPERS

to answer foi; the deed of his servant by the law-
merchant, as elsewhere is used." 46 The statute
limits a previously existing liability, but leaves it
open that the master still shall be holden to answer
for the deed of his servant in certain cases, including
those of the servant's offending in the office in which
the master hath set him. It is dealing with mer-
chants, to be sure, but is another evidence that the
whole modern law is of ancient extraction.

It must be remembered, however, that the cases
in which the modern doctrines could have been ap-
plied in the time of the Year Books were exceedingly
few. The torts dealt with by the early law
were almost invariably wilful. They were either
prompted by actual malevolence, or at least were
committed with full foresight of the ensuing dam-
age. 47 And as the judges from an early day were
familiar with the distinction between acts done by
a man on his own behalf and those done in the
capacity of servant, 48 it is obvious that they could
not have held masters generally answerable for such
torts unless they were prepared to go much beyond
the point at which their successors have stopped. 49

4 St. 27 Ed. HI., St. 2, cap. 19.

47 The Common Law, 3, 4, 101-103. I do not mean as a matter
of articulate theory, but as a natural result of the condition of things.
As to very early principles of liability see now Dr. B runner's most
learned and able discussion in Sitzungsberichte der kon. Preuss.
Akademie der Wissensch., XXXV., July 10, 1890. Uber abskhtlose
Missethat im AUdeutschen Strafrechte. Some of the cases mentioned
by him, such as Beowulf, 2435, had come to my notice.

48 See, e.g., Gascoigne in Y. B. 7 Hen. IV. 34, 35, pi. i.
* Cf. Dr. and Stud. Dial. 2, Ch. 42 (A.D. 1550).

AGENCY 71

Apart from frauds 50 and Intentional trespasses against
the master's will 51 1 know of only one other case in
the Year Books which is important to this part of
my subject. That, however, is very important. It
is the case concerning fire, 52 which was the precedent
relied on by Lord Holt in deciding Turberville v.
Stampe, 53 which in its turn has been the starting-
point of the later decisions on master and servant. 54
I therefore shall state it at length.

Beaulieu sued Finglam, alleging that the defend-
ant so negligently guarded his fire that for want of
due guard of the same the plaintiffs houses and
goods were burned. Markham (J.) ? "A man is held
to answer for the act of his servant or of his guest
(hosteller) in such case; for if my servant or my
guest puts a candle on a beam (en un pariet), and the
candle falls in the straw, and burns all my house,
and the house of my neighbor also, in this case I
shall answer to my neighbor for the damage which
he has, quod concedebatur per curiam. Horneby
[of counsel], Then he should have had a writ,
Quare domum suam ardebat vel exarsit. Hull [of
counsel], That will be against all reason to put blame
or default in a man where there is (il ad) none in

Y. B. 9 Hen. VI. 53, PL 37*

i Y. B. 13 Hen. VH. 15, pL 10. Cf. Keilway, 3^, pi- 1 (M. 12
Hen. VH.).

52 Y. B. 2 Hen. IV. 18, pi. 6.

52 Carthew, 425, shows that the Year Book was cited. And the
language of Lord Holt, reported in i Ld. Raym. 264, shows that he
had it before his mind.

54 Brucker v. Fromont, 6 T. R. 659; M*Manus v. Crickett, i East,
106; Patten v. Rea, 2 C B. N. S. 606.

7 3 COLLECTED LEGAL PAPERS

him; for negligence of his servants cannot be called
his feasance, Thiming [C. J.], If a man kills
(tue on occist) & mam by misfortune he will forfeit
his goods, and he must have his charter of pardon
de grace. A4 quod Curia concordat. Markham,
I shall answer to my neighbor for him who enters
iny fcmse by my teave or my knowledge, or is enter-
tetmei (Aosfe) fey ae or by my servant, if he does,
r aiaiy one of them does such a thing, as with a
candle ($vme de cbmdel)^ or other thing, by which
the lease of my neighbor is burned; but if
a mm fmm outside my house^ agaiiast my will, puts
the ire m the straw of nay house, or elsewhere, by
wMda my house is burned and also the houses of my
neighbors are burned, for that I shall not be held to
answer to them, etc., for this cannot be said to be
through ill-doing (male) on my part, but against my
will." Horneby then said that the defendant would
be ruined if this action were maintained against him.
Thirning (C. J.)> "What is that to us? It is better
that he should be undone wholly, than that the law
should be changed for him. 55 Then they were at
issue that the plaintiff's house was not burned by the
defendant's fire."

The foregoing case affords some ground for the
argument which was vainly pressed in Turberville v.
Stampe, that the liability was confined to the house. 56
Such a limit is not unsupported by analogy. By the
old law a servant's custody of his master's things was

55 y. B. 2 Hen. IV. 18, pi. 6.

w See also I Bl. Comm. 431; Noy's Maxims, Ch. 44-

AGENC 75

said to be the master's possession withii Ms house,
but the servant's on a jotsraey outside of fcf 7 Se an
innkeeper was liable for a! goods mtitita the inn
whether he had the custody of them or not 5 * So ift
the case which has 6een mentioned abcwe^ a master
was said to be re^pslble for the acts of Ms servants
on board It will be notfoeti that the

responsibility of a householder seems to lie extended
to his guests. From that day to this these have been
occasional glimpses of a tendency to regard guests
as part of the familia for the purposes of the law.**
And in view of the fact that by earlier law if a guest
was allowed to stop in the house three days, he was
called koghenehine or agemkme, that is, own hme or
servant of the host, it may be thought that we have
here an echo of the fritkborh* But with whatever
limits and for whatever occult causes, the responsi-
bility of the head of the house for his servants was
clearly recognized, and, it would seem, the identifica-
tion of the two, notwithstanding a statement by
counsel, as dear as ever has been made since, of the
objections to the doctrine.

The later cases in the Year Books are of wilful
wrongs, as I have said, and I now pass to the subse-
quent reports* Under Elizabeth a defendant justi-
fied taking sheep for toll under a usage to have toll
of strangers* sheep driven through the vill by

BT Y. B. 21 Hen. VH. 14, pi 21 ; The Common Law, 226.

B Y. B. 42 Ass. pi. 17, foL 260; 42 Ed. HI. u, pi. 13.

59 Y. B. 13 Ed. W. 10, pi. 5; Southcote v. Stanley, i H. N.

347i 250.

o Bract., foL I24b; LL. Gul. L, Ch. AS; LL. Edw. Conf., Ch. 23.

74 COLLECTED LEGAL PAPERS

strangers, and If he were denied by such stranger
driving them, to distrain them. The defendant
alleged that the plaintiff, the owner of the sheep, was
a stranger, but did not allege that the driver was.
But the court sustained the plea, saying, "The driv-
ing of the servant is the driving of the master; and
if he be a foreigner, that sufficeth," 61

I leave on one side certain cases which often have
been cited for the proposition that a master is
chargeable for his servant's torts, because they may
be explained otherwise and make no mention of it. 68

The next evidence of the law to which I refer is
the passage from West's Symb oleography which was
given in full at the outset, and which gives the
modern doctrine of agency as well as the fiction of
identity in their full development. There are two
nearly contemporaneous cases in which unsuccess-
ful attempts were made to hold masters liable for
wilful wrongs of their servants, in one for a piracy, 65
in the other for a fraud. 64 They are interesting
chiefly as showing that the doctrine under discussion

i Smith v. Shepherd, Cro. Elir., 710; M. 4* & 42 Eliz. B. R.

2 The most important is Lord North's case, Dyer, i6ia (T. 4
& $ Phil. & M.) ; but there the master was a bailee bound to
return at his peril (cf. The Common Law, I7S-I79- In Dyw, 2 3&>,
pi. 38 (E. 7 Eliz. ), a customer of a port was said to be liable to
the penalties for a false return, although he made it through the
concealment of his deputy. One or both of these cases are cited in
Waltham v. Mulgar, Moore, 776; Southern v. How, Popham, 143;
Boson v, Sandford, i Shower, 101; Lane v. Cotton, 12 Mod. 472,
489, etc.

ea Waltham v. Mulgar, Moore, 776 (P. 3 Jac. x.).

* Southern t>. How, Cro. Jac. 468; s. c. Popham, 143; a
JRep. 5, 26; Bridgman, 125, where the special verdict is set forth.

AGENCY 75

was in the air, but that its limits were not definitely
fixed. The former sought to carry the rule respon-
deat superior to the full extent of the early statutes
and cases which have been referred to, and cited the
Roman law for its application to public affairs. The
latter cites Doctor and Student. West also, it will
have been noticed, indicates Roman influence.

Omitting one or two cases on the liability of the
servant, which will be mentioned shortly, I come
once more to a line of authorities touching public
officers. I have said that although there was a differ-
ence in the degree of responsibility, under-officers
always have been said to be servants.

Under Charles II. this difference was recognized,
but it was laid down that "the high sheriff and
under-sheriff is one officer," and on that ground the
sheriff was held chargeable. 65 Lord Holt expressed
the same thought: "What is done by the deputy is
done by the principal, and it is the act of the prin-
cipal," or, as it is put in the margin of the report,
"Act of deputy may forfeit office of principal, be-
cause it is quasi his act." 66 Later still, Blackstone
repeats from the bench the language of Charles's
day. "There is a difference between master and
servant, but a sheriff and all his officers are considered
in cases like this as one person." So his associate
judge, Gould, "I consider [the under-sheriffs clerk]
as standing in the place of, and representing the very

5 Cremer v. Humberston, 2 Keble, 352 (H. 19 & 20 Car. II.).
66 Lane v. Cotton, i Salk, 17, i8j s.c. i Ld. Raym. 646; Com. 100

(p. 12 w. m.>.

7 6 COLLECTED LEGAL PAPERS

persons of ... the sheriffs themselves." 67 Again,
the same idea is stated by Lord Mansfield: "For all
civil purposes the act of the sheriffs bailiff is the act
of the sheriff," 6S The distinction taken aBove by
Blackstone did not prevent his saying in his Com-
mentaries that under-officers are servants of the
sheriff; 69 and in Woodgate v. Knatchbull/ Ashurst,
J., after citing the words of Lord Mansfield, adds,
"This holds, indeed, in most instances with regard
to servants in general"; and Blackstone says the
same thing in a passage to be quoted hereafter.

Having thus followed down the fiction of identity
with regard to one class of servants, I must now re-
turn once more to Lord Holt's time. In Boson v.
Sanford, 71 Eyres, J., says that the master of a ship
is no more than a servant, "the power which he hath
is by the civil law, Hob. HI, and it is plain the act
or default of the servant shall charge the owner."
Again, in Turberville v. Stampe, 72 Lord Holt, after
beginning according to the Roman law that "if my
servant throws dirt into the highway I am indictable,"
continues, "So in this case, if the defendant's servant
kindled the fire in the way of husbandry and proper
for his employment, though he had no express com-

7 Saunderson t>. Baker, 3 Wilson, 309 s.c. 2 Wm. Bl. 832 ; (T. 12 G.
IH. 1772).

* Ackworth 0. Kempe, Douglas, 40, 42 (M. 19 Geo. HI. 1778).

* 9 I BL Comm. 345, 34&.
70 2 T. R. 148, 154 (1787).
" i Shower, 101. 107 (M. 2 Wm. III.).

72 i Ld. Raym. 264 (M. 9 Wm. in.) ; s. c. 3 id. 250, Carthew, 425,
Com. 32, i Salk. 13, Skinner, 681, 12 Mod. 151, Comb. 459> Holt, 9.

AGENCY 77

mand of Ms master, yet the master shall be liable
to an action for damages done to another by the fire;
for it shall be intended, that the servant had author-
ity from his master, it being for his master's benefit"
This is the first of a series of cases decided by Lord
Holt 73 which are the usual starting-point of modern
decisions, and it will be found to be the chief author-
ity relied on by cases which have become leading in
their turn/ 4 It therefore is interesting to note that
it only applied the principles of Beaulieu v. Finglam,
in the Year Book 2 Henry IV., to a fire outside the
house, that the illustration taken from the Roman
law shows that Lord Holt was thinking of the re-
sponsibility of a paterfamilias, and that in another
case within three years 75 he made use of the fiction
of identity.

I may add, by way of confirmation, that Black-
stone, in his Commentaries, after comparing the
liability of the master who "hath the superintendence
and charge of all his household" if any of his family
cast anything out of his house into the street, with
that of the Roman paterfamilias further observes
that the "master may frequently be answerable for
his servant's misbehavior, but never can shelter him-
self from punishment by laying the blame on his

73 Jones v. Hart, 2 Salk. 441; s.c. i Ld. Raym. 738, 739 (M. 10
Wm. Ill); Middleton v. Fowler, i Salk 282 (M. 10 Wm.
Ill) ; Hern v. Nichols, i Salk. 289.

7* Brucker v. Fromont, 6 T.R. 659 ; M'Manus v. Crickett, i East,
106; Patten v. Rea, 2 OB. KS. 606 (1857).

75 Lane v. Cotton, i Salk. 17* 18.

** See also Noy's Maxims, Ch. 44.

78 COLLECTED LEGAL PAPERS

agent. The reason of this is still uniform and the
same; that the wrong done by the servant is looked
upon in law as the wrong of the master himself." 7T

There is another line of cases which affords strik-
ing and independent evidence that the law of master
and servant is a survival from slavery or other insti-
tution of like effect for the present purpose, and
that the identification of the two parties was carried
out in some cases to its logical result. If a servant,
although a freeman, was treated for the purposes of
the relation as if he were a slave who only sustained
the persona of his master, it followed that when the
master was liable, the servant was not. There seems
to have been a willingness at one time to accept the
conclusion. It was said under James and Charles I.
that the sheriff only was liable if an under-sheriff
made a false return, "for the law doth not take notice
of him. 78 So it was held in the latter reign that case
does not lie against husband and wife for negli-
gently keeping their fire in their house, "because this
action lies on the ... custom . . . against
patrem Camillas and not against a servant or a feme
covert who is in the nature of a servant. 79 So Rolle
says that "if the servant of an innkeeper sells wine
which is corrupt, knowing this, action of deceit lies
not against the servant, for he did this only as

77 BL Comm. 431, 432.

Cremer & Tookley's Case, Godbolt, 385, 3*9 (Jac. I.) ; Laicock's
Case, Latch, 187 (H. 2 Car. I.) .

79 Shelley & Burr, i Roll. Abr. 2, pi. 7 (M. i Car. i). Cf. I BL
Comm. 431; Com. Dig., Action on the case for negligence, A. C.

AGENCY 79

servant." 80 So as to an attorney maliciously acting
in a case where he knew there was no cause of action.
"For that what he does is only as servant to another,
and in the way of his calling and profession." 81

Later this was cut down by Lord Holt to this rule
that a servant is not liable for a neglect (i.e. a non-
feasance) , "for they must consider him only as a
servant"; "but for a misfeasance an action will lie
against a servant or deputy, but not quatenus a
deputy or servant, but as a wrong-doer," 82 That is
to say, although it is contrary to theory to allow a
servant to be sued for conduct in his capacity as such,
he cannot rid himself of his responsibility as a free-
man, and may be sued as a free wrong-doer. This,
of course, is the law to-day. 83 Yet as late as Black-
stone's Commentaries it was said that "if a smith's
servant lames a horse while he is shoeing him, an
action lies against the master, and not against the
servant. 84

I think I now have traced sufficiently the history
of agency in torts. The evidence satisfies me that
the common law has started from the patria potestas

80 Roll. Abr. 95 (T) citing no authority, and adding, "Contra,
g Hen. VI., 53b." The contradiction is doubtful.

81 Anon., I Mod. 209, 210 (H. 27 & 28, Car II.). Cf. Barker v.
Braham, 2 W. BL 866, 869.

8 2 Lane t>. Cotton, 12 Mod. 472, 4&8 T. 13 W. HI. Cf. Mors v.
Slew, 3 Keble, 135 (23 & 24 Car. IL, 1671, 1672); also Mires t>.
Solebay, a Mod. 242, 244 (T. 29 Car. II.), for an exception by
Scroggs, C. J.

83 Sands v. ChEds, 3 Lev. 351, 35^; Perkins t>. Smith, 3 Wilson, 328

i BL Comm. 431 ; Bac. Abr., Master and Servant, K. It is enough
amply to refer to the law as to the liability of married women.

80 COLLECTED LEGAL PAPERS

and the firthborh, whether following or simply
helped by the Roman law, it does not matter, and
that it has worked itself out to its limits through the
formula of identity. It is true that liability for an-
other as master or principal is not confined to family
relations; but I have shown partly, and shall com-
plete the proof later, that the whole doctrine has been
worked out in terms of master and servant and on
the analogies which those terms suggested.

AGENCY.*
II

THE history of agency as applied to contract is
next to be dealt with. 1 In this branch of the law there
is less of anomaly and a smaller field in which to
look for traces of fiction than the last. A man is not
bound by his servant's contracts unless they are
made on his behalf and by his authority, and that
he should be bound then is plain common-sense. It
is true that in determining how far authority extends,
the question is of ostensible authority and not of
secret order. But this merely illustrates the general
rule which governs a man's responsibility for his
acts throughout the law. If, under the circumstances
known to him, the obvious consequence of the prin-
cipal's own conduct in employing the agent is that
the public understand him to have given the agent
certain powers, he gives the agent these powers. And
he gives them just as truly when he forbids their
exercise as when he commands it. It seems always
to have been recognized that an agent's ostensible
powers were his real powers! 2 and on the other hand
it always has been the law that an agerit could not

* Harvard Law Review. Vol. V. No. i.

1 4 Sarv. Law Rev. 34$.

2 Y. B. 27 Ass., pi. 5, fol. 133; Anon., i Shower, 95; Nickson *.
Brohan, 10 Mod. 109, etc.

Si

82 COLLECTED LEGAL PAPERS

bind his principal beyond the powers actually given in
the sense above explained.

There is, however, one anomaly introduced by
agency even into the sphere of contract, the rule
that an undisclosed principal may sue or be sued on
a contract made by an agent on his behalf; and this
must be examined, although the evidence is painfully
meagre. The rule would seem to follow very easily
from the identification of agent and principal, as I
shall show more fully in a moment. It is there-
fore well to observe at the outset that the power of
contracting through others, natural as it seems,
started from the family relations, and that it has been
expressed in the familiar language of identification.

Generally speaking, by the Roman law contractual
rights could not be acquired through free persons
who were strangers to the family. But a slave de-
rived a standing to accept a promise to his master ex
persona domini? Bracton says that contracts can be
accepted for a principal by his agent; but he starts
from the domestic relations in language very like that
of the Roman jurisconsults. An obligation may be
acquired through slaves or free agents in our power,
if they take the contract in the name of their master. 4

It was said under Henry V. that a lease made by

3 Inst. 3. 17, pr. See Gaius, 3, 164-166.

* "Videndum etiam est per quas personas acquirator obligatio, ct
sdendum quod per procuratores, et per liberos, quos sub potestate
nostra habemus, et per nosmetipsos, et filios nostros et per liberos
homines servientes nostros." Bract., foL 100 6. So, "Etiam dormienti
per servum acquiritur, ut per procuratorem, si nomine domini stipule-
tur." Bract., fol. 28 b.

AGENCY 83

the seneschal of a prior should be averred as the lease
of the prior/ and under James L it was held that an
assumpsit to a servant for his master was properly
laid as an assumpsit to the master. 6 West's Sym-
boleography belongs to the beginnings of the same
reign. It will be remembered that the language which
has been quoted from that work applies to contracts
as well as to torts. A discussion in the Year Book,
8 Edward IV. ? fol. n ? is thus abridged in Popham:
"My servant makes a contract, or buys goods to my
use; I am liable, and it is my act." 7 Baron Parke ex-
plains the requirement that a deed executed by an
agent should be executed in the name of his princi-
pal, in language repeated from Lord Coke: "The at-
torney is . . . put in place of the principal and repre-
sents his person. 3 ' 8 Finally, Chitty, still speaking of
contracts, says, like West, that "In point of law the
master and servant, or principal and agent, are con-
sidered as one and the same person." *

I have found no early cases turning upon the law
of undisclosed principal. It will be remembered that
the only action on simple contract before Henry VI.,
and the chief one for a good while after, was debt,

5 Y. B, s H. v. 4, pi. 17.

Seignior & Wolmer's Case, Godbolt, 360 (T. 21 Jac.). Cf. Jordan's
Case, Y. B. 27 EL VIII. 24, pi. 3.

7 Drope v. Theyar, Popham, 178, 179 (P. 2 Car. I.).

8 Hunter v. Parker, 7 M. & W. 322, 343 (1840) ; Combes's Case, 9
Rep, 75 a, 76 6, 77 (T. n Jac.). The fiction of Identity between prin-
ciple and agent was fully stated by Hobbes, who said many keen things
about the law. Leviathan, Part I. Ch. 16. "Of Persons, Authors, and
things Personated." Also De Homine, I. C. 15. De Homine Fictitio.

9 i BL Comm. 429, note.

84 COLLECTED LEGAL PAPERS

and that this was founded on a quid pro quo received
by the debtor. Naturally, therefore, the chief ques-
tion of which we hear in the earlier books is whether
the goods came to the use of the alleged debtor. 10 It
is at a much later date, though still in the action of
debt, that we find the most extraordinary half of the
rule under consideration first expressly recognized.
In Scrimshire v. Alderton u (EL 16 G. II.) a suit was
brought by an undisclosed principal against a pur-
chaser from a del credere factor. Chief Justice Lee
"was of opinion that this new method [i.e., of the
factor taking the risk of the debt for a larger com-
mission] had not deprived the farmer of his remedy
against the buyer." And he was only prevented
from carrying out his opinion by the obstinacy of the
jury at Guildhall. The language quoted implies that
the rule was then well known, and this, coupled with
the indications to be found elsewhere, will perhaps
warrant the belief that it was known to Lord Holt.

Scott v. Surman, 12 decided at the same term that
Scrimshire v. Alderton was tried, refers to a case of
T. 9 Anne, Gurratt v. Cullum, 13 in which goods were
sold by factors to J. S. without disclosing their prin-
cipal. The factors afterwards went into bankruptcy.
Their assignee collected the debt, and the principal
then sued him for the money. "And this matter being

1 Fitz. Abr. Dett, pi. 3 (T. 2 R. II.) . Cf. Alford v. Eglisfield, Dyer,
230 b (T. 6 Eliz.), and notes.

11 2 Strange, 1182.

" Willes, 400, at p. 405 (H. 16 G. H.).

i 3 Also reported in Buller, N. P. 42. Cf. WMtecomb v. Jacob, I
Salk. 160 (T. 9 Anne).

AGENCY 85

referred by Holt for the opinion of the King's Bench,
judgment was given on argument for the plaintiff.
Afterwards at Guildhall, before Lord Chief Justice
Parker, this case was cited and allowed to be law,
because though it was agreed that payment by J. S.
to [the factors] with whom the contract was made
would be a discharge to J. S. against the principal,
yet the debt was not in law due to them, but to the
person whose goods they were . . . and being paid
to the defendant who had no right to have it, it must
be considered in law as paid for the use of him to
whom it was due." This explanation seems to show
that Chief Justice Parker understood the law in the
same way as Chief Justice Lee, and, if it be the true
one, would show that Lord Holt did also. I think the
inference is somewhat strengthened by other cases
from the Salkeld MSS. cited in Buller's Nisi Prius.^
Indeed I very readily should believe that at a much
earlier date, if one man's goods had come to another
man's hand by purchase, the purchaser might have
been charged, although he was unknown and had
dealt through a servant, 15 and that perhaps he might
have been, in the converse case of the goods belong-
ing to an undisclosed master. 16

i* Gonzales i>. Sladen: Thorp v. How (H. 13 W. III.) ; Buller, N.P.
130.

15 See Goodbaylie's Case, Dyer, 230 6, pi. 56, n.; Truswell v. Middle-
ton, 2 Roll. R. 269, 270. Note, however, the insistence on the servant
being known as such in Fitz. Abr. Dett f pi. 3; 27 Ass., pi. 5, fol. 133*

16 Consider the doubt as to ratifying a distress made "generally not
showing his intent nor the cause wherefore he distrained" in Godbolt,
109, pi. 129 (M. 28 & 29 Eliz.). Suppose the case had been contract
instead of tort, and with actual authority, would the same doubt have
been felt?

86 COLLECTED LEGAL PAPERS

The foregoing cases tend to show, what is quite
probable, that the doctrine under discussion began
with debt. I do hot wish to undervalue the argument
that may be drawn from this fact, that the law of un-
disclosed principal has no profounder origin than the
thought that the defendant, having acquired the
plaintiff's goods by way of purchase, fairly might be
held to pay for them in an action of contract, and that
the rule then laid down has been extended since to
other contracts. 17

But suppose what I have suggested be true, it does
not dispose of the difficulties. If a man buy's B.'s
goods of A., thinking A. to be the owner, and B. then
sues him for the price, the defendant fairly may ob-
ject that the only contract which he has either con-
sented or purported to make is a contract with A.,
and that a stranger, to both the intent and the form
of a voluntary obligation cannot sue upon it. If
the contract was made with the owner's consent, let
the contractee bring his action. If it was made with-
out actual or ostensible authority, the owner's right's
can be asserted in an action of tort. The general rule
in case of a tortious sale is that the owner cannot
waive the tort and sue in assumpsit. 18 Why should
the fact that the seller was secretly acting in the
owner's behalf enlarge the owner's rights as against
a third person? The extraordinary character of the
doctrine is still clearer when it is held that under a

17 Sims v. Bond, 5 B. & Ad. 389, 393 (1833)- Cf. Bateman v.
Phillips, 15 East, 272 (1812).
" Berkshire Glasc Co. v. Wolcott, 2 Allen (Mass.) 227.

AGENCY 87

contract purporting to be made with the plaintiff and
another jointly, the plaintiff may show that the two
ostensible joint parties were agents for himself alone,
and thus set up a several right in the teeth of the
words used and of the ostensible transaction, which
gave him only a joint one. 19

Now, if we apply the formula of identification and
say that the agent represents the person of the owner,
or that the principal adopts the agent's name for the
purposes of that contract, we have at once a formal
justification of the result. I have shown that the
power of contracting through agents started from
the family, and that principal and agent were identi-
fied in contract as well as in tort. I think, therefore,
that the suggested explanation has every probability
in its favor. So far as Lord Holt is concerned, I may
add that in Gurratt v. Cullum the agent was a factor,
that a factor in those days always was spoken of as
a servant, and that Lord Holt was familiar with the
identification of servant and master. If he was the
father of the present doctrine, it is fair to infer that
the technical difficulty was consciously or uncon-
sciously removed from his mind by the technical fic-
tion. And the older we imagine the doctrine to be,
the stronger does a similar inference become. For
just in proportion as we approach the archaic stage
of the law, the greater do we find the technical obsta-
cles in the way of any one attempting to enforce a
contract except the actual party to it, and the greater

19 Spurr v. Cass, L. R. 5 Q. B. 656. See further, Sloan v. Merrill, 135
Mass. 17, 19.

88 COLLECTED LEGAL PAPERS

therefore must have been the need of a fiction to over-
come them. 20

The question which I have been considering arises
in another form with regard to the admission of oral
evidence in favor of or to charge a principal, when a
contract has been made in writing, which purports
on its face to be made with or by the alleged agent
in person. Certainly the argument is strong that
such evidence varies the writing, and if the Statute
of Frauds applies, that the statute is not satisfied un-
less the name of the principal appears. Yet the con-
trary has been decided. The step was taken almost
sub silentio^ But when at last a reason was offered,
it turned on, or at least was suggested by, the notion
of the identity of the parties. It was in substance
that the principal "is taken to have adopted the name
of the [agent] as his own, for the purpose of such con-
tracts/ 5 as it was stated by Smith in his Leading
Cases, paraphrasing the language of Lord Denman in
Trueman v. Loder. 22

I gave some evidence at the beginning of this dis-
cussion, that notions drawn from the familia were

20 Cf. The Common Law, Ch. x. and xt "Unsere heutigen Ans-
chauungen . . . konnen sich nur schwer in urspriingliche Rechts-
zustande hineinfinden, in welchen . . . bei Contrahirung oder Zahlung
einer Schuld die handelnden Subjecte nicht als personae fungibiles
galten." B runner, Zulassigkeit der Anwaltschaft im franzos, etc. Rechte.
(Zeitschr. fiir vergleich. Rechtswissenschaft) Norcross v. James, 140
Mass. 188, 189.

21 Bateman v. Phillips, 15 East, 272 (1812) ; Garrett v. Handley, 4
B. & C. 664 (1825) ; Higgins v. Senior, 8 M, & W. 834, 844 (1841).

22 ii Ad. & El. 595; s. c. 3 P. & D. 267, 271 (1840) ; 2 Sm. L. C.,
8th ed., 408, note to Thompson v. Davenport; Byington v. Simpson, 134
Mass. 169, 170.

AGENCY 89

applied to free servants, and that they were extended
beyond the domestic relations. All that I have quoted
since tends in the same direction. For when such
notions are applied to freemen in a merely contractual
state of service it is not to be expected that their in-
fluence should be confined to limits which became
meaningless when servants ceased to be slaves. The
passage quoted from Bracton proved that already
in his day the analogies of domestic service were
applied to relations of more limited subjection. I
have now only to complete the proof that agency in
the narrower sense, the law familiar to the higher
and more important representatives employed in
modern business, is simply a branch of the law of
master and servant.

First of the attorney. The primitive lawsuit was
conducted by the parties in person. Counsel, if they
may be called so, were very early admitted to con-
duct the formal pleadings in the presence of the party
who was thus enabled to avoid the loss of his suit,
which would have followed a slip on his part in utter-
ing the formal words, by disavowing the pleading of
his advocate. But the Prankish law very slowly
admitted the possibility of giving over the conduct
of a suit to another, or of its proceeding in the absence
of the principals concerned. Brunner has traced the
history of the innovation by which the appointment
of an attorney (i.e., loco positus) came generally to
be permitted, with his usual ability. It was brought
to England with the rest of the Norman law, was
known already to Glanvill, and gradually grew to

go COLLECTED LEGAL PAPERS

its present proportions. The question which I
have to consider, however, is not the story of its in-
troduction, but the substantive conception under
which it fell when it was introduced.

If you were thinking of the matter a priori it would
seem that no reference to history was necessary, at
least to explain the client's being bound in the cause
by his attorney's acts. The case presents itself like
that of an agent authorized to make a contract in such
terms as he may think advisable. But as I have
hinted, whatever common-sense would now say, even
in the latter case it is probable that the power of con-
tracting through others was arrived at in actual fact
by extending the analogy of slaves to freemen. And
it is at least equally clear that the law had need of
some analogy or fiction in order to admit a represen-
tation in lawsuits. I have given an illustration from
Iceland in my book on the Common Law. There the
conduct of a suit was transferred from Thorgier to
Mord "as if he were the next of kin." 23 In the
Roman law it is well known that the same difficulty
was experienced. The English law agreed with the
Northern sources in treating attorneys as sustaining
the persona of their principal. The result may have
been worked out in a different way, but that funda-
mental thought they had in common. I do not in-
quire into the recondite causes, but simply observe
the fact.

Bracton says that the attorney represents the

23 The Common Law, 359. See Brunner, in i Holtzendorff, Encyc.
II. 3, A. i, 2, 3d ed., p. 166. i Stubbs, Const. Hist. 82.

AGENCY 91

persona of his principal in nearly everything. 2 * He
was "put in the place of" his principal, loco po situs
(according to the literal meaning of the word
attorney}, as every other case in the Abbreviatio
Placitorum shows. The essoign de malo lecti had
reference to the illness of the attorney as a matter
of necessity. 25 But, in general, the attorney was dealt
with on the footing of a servant, and he is called so as
soon as his position is formulated. Such is the lan-
guage of the passage in West's Symb oleography
which I have quoted above, and the anonymous case
which held an attorney is not liable for maliciously
acting in a cause which he knew to be unfounded. 28
When, therefore, it is said that the "act of the attor-
ney is the act of his client," it is simply the familiar
fiction concerning servants applied in a new field. On
this ground it was held that the client was answer-
able in trespass, for assault and false imprisonment,
where his attorney had caused the party to be
arrested on a void writ, wholly irrespective, it would
seem, of any actual command or knowledge on the
part of the client; 27 and in trespass quare clausum,
for an officer's breaking a man's house and taking his
goods by command of an attorney's agent without the
actual knowledge either of the client or the attorney.
The court said that the client was "answerable for the

24 "Attornatus fere in omnibus personam domini representat. M Bract.,
fol. 342 a. See LL. Hen. I. 42, 2.

25 Bract., fol. 342 a. Cf. Glanv. XI., C. 3.

26 Anon., i Mod. 209, 210 (H. 27 & 28 Car. H).

27 Parsons v. Loyd, 3 Wils. 341, 345; s. c. 2 W. Bl. 845 (M. 13 G.
m. 1772) ; Barker v. Braham, 2 W. BL 866, 868, 869; s. c. 3 WHS. 368.

92 COLLECTED LEGAL PAPERS

act of his attorney, and that [the attorney] and his
agent [were] to be considered as one person." 2S

The only other agent of the higher class that I
think it necessary to mention is the factor. I have
shown elsewhere that he is always called a servant in
the old books. 29 West's language includes factors as
well as attorneys. Servant, factor, and attorney are
mentioned in one breath and on a common footing
in the Year Book, 8 Edward IV., folio n b. So
Dyer, 30 "if a purveyor, factor, or servant make a
contract for his sovereign or master." So in trover
for money against the plaintiff's "servant and fac-
tor." 31 It is curious that in one of the first attempts
to make a man liable for the fraud of another, the
fraudulent party was a factor. The case was argued
in terms of master and servant. 32 The first author-
ity for holding a master answerable for his servant's
fraud is another case of a factor. 33 Nothing is said of
master and servant in the short note in Salkeld. But
in view of the argument in Southern v. How, just re-
ferred to, which must have been before Lord Holt's
mind, and the invariable language of the earlier
books, including Lord Holt's own when arguing
Morse v. Slue ("Factor, who is servant at the master's

28 Bates v. Pilling, 6 B. & C. 38 (1826).

29 The Common Law, 228, n. 3, 181. See further generally, 230,
and n. 4, 5.

80 Alford v. Eglisfield, Dyer, 230 6, pi. 56.

31 Holiday v. Hicks, Cro. Eliz. 638, 661, 746. See further, Malyne's
Lex. Merc., Pt. I. Ch. 16; Molloy, Book 3, Ch. 8, i; Williams v. Mil-
lington, i H. BI. 81, 82.

82 Southern v. How, Cro, Jac. 468; s. c. Popham, 143.

83 Hern v. Nichols, i Salk. 289.

AGENCY 93

Dispose")? 34 it is safe to assume that he considered the
case to one of master and servant, and it always is
cited as such. 35

To conclude this part of the discussion, I repeat
from my book on the Common Law 36 that as late
as Blackstone agents appear under the general head
of servants; that the precedents for the law of agency
are cases of master and servant, when the converse is
not the case ; and that Blackstone 's language on this
point is express: "There is yet a fourth species of
servants, if they may be so called, being rather in a
superior, a ministerial, capacity; such as stewards,
factors, and bailiffs; whom, however, the law consid-
ers as servants pro tempore, with regard to such of
their acts as affect their master's or employer's
property." 37

Possession is the third branch of the law in which
the peculiar doctrines of agency are to be discovered,
and to that I now pass.

The Roman law held that the possession of a slave
was the possession of his master, on the practical
ground of the master's power. 38 At first it confined
possession through others pretty dosely to things
in custody of persons under the patria potestas of
the possessor (including prisoners bona fide held as
slaves). Later the right was extended by a constitu-
tion of Severus. 39 The common law in like manner

a* Mors v. Slew, 3 Keble, 72.

35 Smith, Master and Servant, sd ed n 266.

36 P. 228 et seq. S7 i Bl. Comm. 427.

8 The Common Law, 228; Gams, 3, 164-166.
Inst. 2, 9, 4, 5; C. 7- 32. i.

9 4 COLLECTED LEGAL PAPERS

allowed lords to appropriate lands and chattels pur-
chased by their villeins, and after they had manifested
their will to do so, the occupation of the villeins was
taken to be the right of their lords. 40 As at Rome, the
analogies of the familia were extended to free agents.
Bracton allows possession through free agents, but
the possession must be held in the name of the princi-
pal; 41 and from that day to this it always has been the
law that the custody of the servant is the possession
of the master. 42

The disappearance of the servant under the persona
of his master, of which a trace was discovered in the
law of torts, in this instance has remained complete.
Servants have no possession of property in their
custody as such, 43 The distinction in this regard
between servants and all bailees whatsoever 44 is fun-
damental, although it often has been lost sight of.
Hence a servant can commit larceny 45 and cannot
maintain trover. 46 A bailee cannot commit larceny 47

^o Littleton, 177. Cf. Bract, fol. 191 a; Y. B. 22 Ass., pi. 37 fol.
93; Litt., 172; Co. Lit. 117 .

*i Bract., fol. 28 b, 42 b, 43, etc.; Fleta, IV., C. 3, i, C. 10, 7,
C. n, i.

42 Wheteley v. Stone, 2 Roll. Abr. 556, pi. 14; s. c. Hobart, 180;
Drope v. Theyar, Popham, 178, 179.

4 3 The Common Law, 227.

4* The Common Law, 174, 211, 221, 243; Hallgarten v. Oldham, 135
Mass, i, 9.

45 Y. B. 13 Ed. TV. 9, 10, pi. $; 21 H. VII. 14, pi. 21.

4 The Common Law, 227, n. 2. The distinction mentioned above,
under torts, between servants in the house and on a journey, led to
the servant's being allowed an appeal of robbery, without prejudice to
the general principle. Heydon & Smith's Case, 13 Co. Rep. 67, 69,* Drope
v. Theyar, Popham, 178, 179; Coombs v. Hundred of Bradley, 2 Salk.
613, pi. a; ib., pi. x. 4T 2 Bish. Crim. Law, 833, 7& ed.

AGENCY 95

and can maintain trover. 48 In an indictment for
larceny against a third person the property cannot
be laid in a servant/ 9 it may be laid in a bailee. 50
A servant cannot assert a lien; 51 a bailee, of course,
may, even to the exclusion of the owner's right to the
possessoiy actions. 52

Here, then, is another case in which effects have
survived their causes. But for survival and the fic-
tion of identity It would be hard to explain why in this
case alone the actual custody of one man should be
deemed by the law to be the possession of another
and not of himself.

A word should be added to avoid a misapprehension
of which there are signs in the books, and to which
I have adverted elsewhere, 53 A man may be a ser-
vant for some other purpose, and yet not a servant in
Ms possession. Thus, an auctioneer or a factor is a
servant for purposes of sale, but not for purposes
of custody. His possession is not that of his princi-
pal, but, on the contrary, is adverse to It, and held
in his own name, as is shown by his lien. On the
other hand, if the fiction of identity Is adhered to,
there is nothing to hinder a man from constituting
another his agent for the sole purpose of maintain-
ing his possession, with the same effect as if the agent
were a domestic servant, and In that case the princi-
pal would have possession and the agent would not.

48 The Common Law, 174, 243, 49 2 East, P. C. 652, 653.

50 Kelyng, 39,

si Bristow v. Whitmore, 4 De G. & J. 3 2 5 334-

5 2 Lord t?. Price, L. R. 9 Ex. 54; Owen v. Knight, 4 Bing. N. C. $4 57-

53 The Common Law, 233.

96 COLLECTED LEGAL PAPERS

Agency is comparatively unimportant in its bearing
on possession, for reasons connected with procedure.
With regard to chattels, because a present right of
possession is held enough to maintain the possessory
actions, and therefore a bailor, upon a bailment ter-
minable at his will, has the same remedies as a master,
although he is not one. With regard to real estate,
because the royal remedies, the assizes, were con-
fined to those who had a feudal seisin, and the
party who had the seisin could recover as well when
his lands were subject to a term of years as when
they were in charge of agents or servants. 54

Ratification is the only doctrine of which the his-
tory remains to be examined. With regard to this I
desire to express myself with great caution, as I shall
not attempt to analyze exhaustively the Roman
sources from which it was derived. I doubt, however,
whether the Romans would have gone the length of
the modern English law, which seems to have grown
to its present extent on English soil.

Ulpian said that a previous command to dispossess
another would make the act mine, and, although
opinion was divided on the subject, he thought that
ratification would have the same effect. He agreed
with the latitudinarian doctrine of the Sabinians, who
compared ratification to a previous command. 55 The
Sabinians' "comparison" of ratification to mandate
may have been a mere figure of speech to explain
the natural conclusion that if one accepts possession

** Bract., foL 307 a. Cf. ib., 220. Header, Gewere, 126.
w D. 43, 16, i, 12, 14. Cf. D. 46, 3i " 4

AGENCY 97

of a thing which has been acquired for him by wrong-
ful force, he is answerable for the property in the
same way as if he had taken it himself. It therefore
is hardly worth while to inquire whether the glos-
sators were right in their comment upon this passage,
that the taking must have been in the name of the
assumed principal, a condition which is ambigu-
ously mentioned elsewhere in the Digest. 56

Bracton copied Ulpian, 57 still, so far as I have ob-
served, not going beyond cases of distress 5S and dis-
seisin. 59 The first reported cases known to me are
again assizes of novel disseisin. 60

But later decisions went much beyond this point,
as may be illustrated by one of them. 61 In trespass
de bonis asportatis the defendant justified as bailiff.
After charging the inquest Gascoigne said that "if
the defendant took the chattels claiming property in
himself for a heriot, although the lord afterward
agreed to that taking for services due him, still he
[the defendant] cannot be called his bailiff for that
time. But had he taken them without command,
for services due the lord, and had the lord afterwards
agreed to his taking, he shall be adjudged as bailiff,
although he was nowhere his bailiff before that tak-

56 D. 43, 26, 13. (Pomponius). 5T Bract, fol. 171 b.

ss Fol. 158 b, 159 0-

59 Fol. 171. But note that by ratification "suam facit injuriam, et
ita tenetur ad utrumque, ad restitutionem, s. [et] ad pcenam." Ibid., b*

60 Y. B. 30 Ed. I. 128 (Horwood) (where, however, the modern doc-
trine is stated and the Roman maxim is quoted by the judge) ; 38 Ass.,
pi. 9, fol. 223; s. c. 38 Ed. III. 18; 12 Ed. IV. 9, pL 23; Howden, 8
ad fin, 27, 31.

Y. B. 7 H. IV. 34, 35, pL i.

9 8 COLLECTED LEGAL PAPERS

ing." A ratification, according to this, may render
lawful ab initio an act which without the necessary
authority is a good cause of action, and for which the
authority was wanting at the time that it was done.
Such is still the law of England. 62 The same prin-
ciple is applied in a less startling manner to contract,
with the effect of giving rights under them to persons
who had none at the moment when the contract
purported to be complete. 63 In the case of a tort, it
follows, of course, from what has been said, that if
it is not justified by the ratification, the principal in
whose name and for whose benefit it was done is
answerable for it. 6 *

Now it may be argued very plausibly that the
modern decisions have only enlarged the comparison

62 Godbolt, 109, no, pi. 129; s. c. 2 Leon, 196, pi. 246 (M. 28 & 29
Eliz.) ; Hull v. Pickersgill, I Brod. & B. 282; Muskett v. Drummond, 10
B. & C. 153, 157; Buron v. Denman, 2 Exch. 167 (1848) ; Secretary of
State in Council of India v. Kamachee Boye Sahaba, 13 Moore, P. C. 22
(1859), 86; Cheetham v. Mayor of Manchester, L. R. 10 C. P. 249;
Wiggins v. United States, 3 Ct. of Cl. 412. But see Bro. Abr,, Trespass,
pi. 86; Fitz, Abr., BayUie, pi. 4.

63 Wolff v. Horncastle, i Bos. & P. 316 (1798). See further, Spittle
v. Lavender, 2 Brod, & B. 452 (1821).

* Bract 150 a, 171 b; Bro., Trespass, pi. 113; Bishop v. Montague,
Cro. Eliz. 824; Gibson's Case, Lane', 90; Com. Dig., Trespass, c. i;
Sanderson v. Baker, 2 Bl. 832; s. c. 3 Wils. 309; Barker v. Braham, 2
BL 866, 868; s. c. 3 Wils. 368; Badkin v, Powell, Cowper, 476, 479 J
Wilson v. Tumman, 6 Man. & Gr. 236, 242 ; Lewis v. Read, 13 M. & W.
834; Buron v. Denman, 2 Exch. 167, 188; Bird v. Brown, 4 Exch. 786,
799; Eastern Counties Ry. v. Broom, 6 Exch. 314, 326, 327; Roe v.
Birkenhead, Lancashire, & Cheshire Junction Ry., 7 Exch. 36, 44;
Ancona v. Marks, 7 H. & N. 686, 605; Perley v. Georgetown, 7 Gray,
464; Condi* v. Baldwin, 21 N. Y. 219, 225; Exum v. Brister, 35 Miss.
391 ; G. H. & S, A. Ry. v. Donahoe, 56 Tex. 162 ; Murray v. Lovejoy,
a Cliff. 191, 195. (See 3 Wall, i, 9.)

AGENCY 99

of the Sabinians into a rule of law, and carried it to
its logical consequences. The comparatur of Ulpian
has become the aequiparatur of Lord Coke, 5 it might
be said; ratification has been made equivalent to
command, and that is all. But it will be seen that this
is a very great step. It is a long way from holding
a man liable as a wrongful disseizor when he has ac-
cepted the wrongfully-obtained possession, to allow-
ing him to make justifiable an act which was without
justification when it was done, and, if that is material,
which was followed by no possession on the part of
the alleged principal. 66 For such a purpose why should
ratification be equivalent to a previous command?
Why should my saying that I adopt or approve of a
trespass in any form of words make me responsible
for a past act? The act was not mine, and I cannot
make it so. Neither can it be undone or in any wise
affected by what I may say. 67

But if the act was done by one who affected to
personate me, new considerations come in. If a man
assumes the status of my servant pro hac vice, it lies
between him and me whether he shall have it or not.
And if that status is fixed upon him by my subsequent
assent, it seems to bear with it the usual consequence

65 Co. Lit. 207 a; 4 Inst. 317. It is comparatur in 30 Ed. I. 128;
Bract. 171 6.

68 Buron v. Denman, 2 Exch. 167 (1848).

67 Ratification had a meaning, of course, when the usual remedy for
wrongs was a blood-feud, and the head of the house had a choice
whether he would maintain his man or leave him to the vengeance of
the other party. See the story of Howard the Halt, i Saga Library,
p. 50, Ch. 14, end. Compare "although he has not received him" in
Fitz. Abr^ Corone, pi. 428, cited 4 Harv. Law Rev. 355.

ioo COLLECTED LEGAL PAPERS

as Incident that his acts within the scope of his em-
ployment are my acts. Such juggling with words of
course does not remove the substantive objections to
the doctrine under consideration, but it does for-
mally reconcile it with the general framework of
legal ideas.

From this point of view it becomes important to
notice that, however it may have been in the Roman
law, from the time of the glossators and of the canon
law it always has been required that the act should
have been done in the name or as agent of the per-
son assuming to ratify it. "Ratum quis habere non
potest quod ipsius nomine non est gestum*" 6S In the
language of Baron Parke in Buron v. Denman, 69 "a
subsequent ratification of an act done as agent is
equal to a prior authority." And all the cases from
that before Gascoigne downwards have asserted the
same limitation. 70 I think we may well doubt
whether ratification would ever have been held
equivalent to command in the only cases in which
that fiction is of the least importance had it not been
for the further circumstance that the actor had
assumed the position of a servant for the time being.
The grounds for the doubt become stronger if it be
true that the liability even for commanded acts
started from the case of owner and slave.

as Sext. Dec. 5. 12. de Reg. Jur. (Reg. o). It made the difference
between excommunication and a mere sin in case of an assault upon
one of the clergy. Ibid. $, n, 23.

6* 2 Exch. 167.

70 Supra. See also Fuller & TrimwelPs Case, 2 Leon, 215, 216;
New England Dredging Co. v. Rockport Granite Co., 149 Mass. 381,
382; Bract., foL 28 b, ioo b.

AGENCY 101

In any event, ratification like the rest of the law
of agency reposes on a fiction, and whether the same
fiction or another, it will be interesting in the conclu-
sion to study limits which have been set to its work-
ings by practical experience.

What more I have to say concerning the history
of agency will appear in my treatment of the last
proposition which I undertook to maintain. I said that
finally I should endeavor to show that the whole out-
line of the law, as it stands to-day, is the resultant
of a conflict between logic and good sense the one
striving to carry fictions out to consistent results, the
other restraining and at last overcoming that effort
when the results become too manifestly unjust. To
that task I now address myself.

I assume that common-sense is opposed to making
one man pay for another man's wrong, unless he
actually has brought the wrong to pass according to
the ordinary canons of legal responsibility, unless,
that is to say, he has induced the immediate wrong-
doer to do acts of which the wrong, or, at least, wrong,
was the natural consequence under the circumstances
known to the defendant. I assume that common-
sense is opposed to allowing a stranger to my overt
acts and to my intentions, a man of whom I have
never heard, to set up a contract against me which I
had supposed I was making with my personal friend.
I assume that common-sense is opposed to the denial
of possession to a servant and the assertion of it
for a depositary, when the only difference between
the two lies in the name by which the custodian is

102 COLLECTED LEGAL PAPERS

called* And I assume that the opposition of com-
mon-sense is intensified when the foregoing doctrines
are complicated by the additional absurdities intro-
duced by ratification. I therefore assume that com-
mon sense is opposed to the fundamental theory of
agency, although I have no doubt that the possible
explanations of its various rules which I suggested
at the beginning of this chapter, together with the
fact that the most flagrant of them now-a-days often
presents itself as a seemingly wholesome check on the
indifference and negligence of great corporations,
have done much to reconcile men's minds to that
theory. What remains to be said I believe will
justify my assumption.

I begin with the constitution of the relation of
master and servant, and with the distinction that an
employer is not liable for the torts of an independent
contractor, or, in other words, that an independent
contractor is not a servant. And here I hardly know
whether to say that common-sense and tradition are
in conflict, or that they are for once harmonious. On
the one side it may be urged that when you have ad-
mitted that an agency may exist outside the family
relations, the question arises where you are to stop,
and why, if a man who is working for another in one
case is called his servant, he should not be called so
in all. And it might be said that the only limit is
found, not in theory, but in common-sense, which
steps in and declares that if the employment is well
recognized as very distinct, and all the circumstances
are such as to show that it would be mere folly to

AGENCY 103

pretend that the employer could exercise control in
any practical sense, then the fiction is at an end.
An evidence of the want of any more profound or
logical reason might be sought in the different cir-
cumstances that have been laid hold of as tests, the
objections that might be found to each, and in the
fact that doubtful cases are now left to the jury. 71

On the other hand, it might be said that the master
is made answerable for the consequences of the
negligent acts "of those whom the law denominates
his servants, because/ 3 in the language of that judg-

71 Among the facts upon which stress has been laid are the follow-
ing: i. Choice. Kelly v. Mayor of New York, n N. Y. 432, 436. See
Walcott v, Swampscott, i Allen, 101, 103. But although It is true
that the employer has not generally the choice of the contractor's ser-
vants, he has the choice of the contractor, yet he is no more liable for
the contractor's negligence than for that of his servant. 2. Control.
Sadler v. Henlock, 4 EL BL 570, 573 (1855). Yet there was control
in the leading case of Quarman v. Burnett, 6 M. & W. 499 (1840),
where the employee was held not to be the defendant's servant. Cf.
Steel v. Lester, 3 C P. D. 121 (1877). 3. A round sum paid. But this
was true in Sadler v. Henlock, sup., where the employee was held to be
a servant. 4. Power to discharge. Burke v. Norwich & W. R.R., 34
Conn. 474 (1867). See Lane t>. Cotton, 12 Mod. 472, 4&8, 489. But
apart from the fact that this can only be important as to persons re-
moved two stages from the alleged master, and not to determine whether
a person directly employed by him is a servant or contractor, the power
to discharge a contractor's servants may be given to the contractee with-
out making him their master. Reedie v. London & Northwestern Ry.
Co., 4 Exch. 244, 258. Robinson t;. Webb, n Bush (Ky.) 4^4-5-
Notoriously distinct calling. Milligan v. Wedge, 12 Ad. &E. 737 (1840) J
Linton v. Smith, 8 Gray (Mass.), 47- This is a practical distinction,
based on common-sense, not directly on a logical working out of the
theory of agency. Moreover, it is only a partial test It does not
apply to all the cases,

In doubtful cases the matter seems to be left to the jury, that ever-
ready sword for the cutting of Gordian knots, as difficult questions of
Jaw generally are.

104 COLLECTED LEGAL PAPERS

ment wHch settled the distinction tinder considera-
tion/ 2 "such servants represent the master himself,
and their acts stand upon the same footing as his
own." That although the limits of this identifica-
tion are necessarily more or less vague, yet all the pro-
posed tests go to show that the distinction rests on
the remoteness of personal connection between the
parties, and that as the connection grows slighter, the
likeness to the original case of menials grows less.
That a contractor acts in his own name and on his
own behalf, and that although the precise point at
which the line is drawn may be somewhat arbitrary,
the same is true of all legal distinctions, and that they
are none the worse for it, and that wherever the line
is drawn it is a necessary one, and required by the
very definition of agency. I suppose this is the pre-
vailing opinion.

I come next to the limit of liability when the re-
lation of master and servant is admitted to exist.
The theory of agency as applied to free servants no
doubt requires that if the servant commits a wilful
trespass or any other wrong, when employed about
his own business, the master should not be liable. No
free man is servant all the time. But the cases which
exonerate the master could never have been decided
as the result of that theory alone. They rather repre-
sent the revolt of common-sense from the whole
doctrine when its application is pushed far enough
to become noticeable.

72 Littledale, J., in Laugher v. Pointer, $ B. & C. 547, 553 (T. 1 G. IV,
1826).

AGENCY 105

For example, It has been held that it was beyond
the scope of a servant's employment to go to the fur-
ther side of a boundary ditch, upon a neighbor's land,
and to cut bushes there for the purpose of clearing
out the ditch, although the right management of
the master's farm required that the ditch should
be cleaned, and although the servant only did what
he thought necessary to that end, and although the
master relied wholly upon his servant's judgment in
the entire management of the premises. 73

Mr. Justice Keating said, the powers given to the
servant "were no doubt very wide, but I do not see
how they could authorize a wrongful act on another
person's land or render his employers liable for a
wilful act of trespass." It is true that the act could
not be authorized in the sense of being made lawful,
but the same is true of every wrongful act for which
the principal is held. As to the act being wilful, there
was no evidence that it was so in any other sense than
that which every trespass might be said to be, and
as the judge below directed a verdict for the defen-
dant, there were no presumptions adverse to the
plaintiff in the case. Moreover, it has been said else-
where that even a wilful act in furtherance of the
master's business might charge him. 74

Mr. Justice Grove attempted to draw the line in
another way. * He said, "There are some things which

Bolingbroke v. Swindon Local Board, L. R. g C. P. $75 (1874) . Cf.
Lewis t>. Read, 13 M. & W. 834; Haseler v. Lemoyne, 5 C. B. ar. s. 530.

7 *Howe v. Newmarch, 12 Allen, 49 (1866). See also cases as to
fraud, infv and cf. Craker v. Chicago & N. W. Ry. Co., 3$ Wise. 657,
669

io6 COLLECTED LEGAL PAPERS

may be so naturally expected to occur from the
wrongful or negligent conduct of persons engaged in
carrying out an authority given, that they may be
fairly said to be within the scope of the employment."
But the theory of agency would require the same
liability for both those things which might and those
which might not be so naturally expected, and this
is only revolt from the theory. Moreover, it may
be doubted whether a case could be found where the
servant's conduct was more naturally to be expected
for the purpose of accomplishing what he had to do. 75

The truth is, as pretty clearly appears from the
opinions of the judges, that they felt the difficulty
of giving a rational explanation of the doctrine sought
to be applied, and were not inclined to extend it.
The line between right and wrong corresponded with
the neighbor's boundary line, and therefore was more
easily distinguishable than where it depends on the
difference between care and negligence, and it was
just so much easier to hold that the scope of the
servant's employment was limited to lawful acts.

I now pass to fraud. It first must be understood
that, whatever the law may be, it is the same in the
case of agents, stricto sensu, as of other servants.
As has been mentioned, the fraudulent servant was a
factor in the first reported decision that the master
was liable. 76 Now if the defrauded party not merely
has a right to repudiate a contract fraudulently ob-
tained, or in general to charge a defendant to the

76 Cf. Harlow v. Humiston, 6 Cowen, 189 (1826) ,
* a Hern t>. Nichols, i Salk. 289,

AGENCY 107

extent that he has derived a benefit from another's
fraud, but may hold him answerable in solidum for
the damage caused by the fraudulent acts of his
servant in the course of the latter's employment, the
ground can only be the fiction that the act of the
servant is the act of the master.

It is true that in the House of Lords 7T Lord Sel-
borne said that the English cases "proceeded, not on
the ground of any imputation of vicarious fraud to
the principal, but because (as it was well put by
Mr. Justice Willes in Barwick's case 78 ) "with respect
to the question whether a principal is answerable
for the act of his agent in the course of his master's
business, no sensible distinction can be drawn be-
tween the case of fraud and the case of any other
wrong." But this only puts off the evil day. Why
is the principal answerable in the case of any other
wrong? It is, as has been seen, because, in the
language of Mr. Justice Littledale, the "servants
represent the master himself, and their acts stand
upon the same footing as his own." 7 * Indeed Mr.
Justice Willes, in the very judgment cited by Lord
Selborne, refers to Mr. Justice Littledale's judgment
for the general principle. So Lord Denman, in Fuller
v. Wilson, 80 "We think the principal and his agent

77 Houldsworth v. City of Glasgow Bank, 5 App. Cas. 3i73 26 j3 2 7
(1880).

78 L. R. 2 Ex. 259.

79 Laugher v. Pointer, 5 B. & C. 547, 553- See Williams v. Jones, 3
H. & C 602, 609.

80 3 Q. B. 58, 67 j s. c. reversed on another ground, but admitting
this principle, ib. 77 and 1009, 1010 (1842).

zo8 COLLECTED LEGAL PAPERS

are for this purpose identified." I repeat more dis-
tinctly the admission that no fiction is necessary to
account for the rule that one who is induced to con-
tract by an agent's fraud may rescind as against the
innocent principal For whether the fraud be im-
puted to the principal or not, he has only a right
to such a contract as has been made, and that con-
tract is a voidable one. But when you go beyond
that limit and even outside the domain of contract
altogether to make a man answer for any damages
caused by his agent's fraud, the law becomes almost
inconceivable without the aid of the fiction. But a
fiction is not a satisfactory reason for changing men's
rights or liabilities, and common-sense has more or
less revolted at this point again and has denied the
liability. The English cases are collected in Houlds-
worth v. City of Glasgow Bank. 81

When it was attempted to carry identification one
step further still, and to unite the knowledge of the
principal with the statement of the agent in order
to make the latter's act fraudulent, as in Cornfoot
v. Fowke, 82 the absurdity became more manifest and
dissent more outspoken. As was most accurately said
by Baron Wilde in a later case. 83 "The artificial iden-
tification of the agent and principal, by bringing the
words of the one side with the knowledge of the
other, induced the apparent logical consequence of

81 5 App. Cas. 317. See The Common Law, p. 231.

82 6 M. & W. 358 (1810). It is not necessary to consider whether
the case was rightly decided or not, as I am only concerned with this
particular ground,

** Udell v. Atherton, 7 H. & N. 172, 184 (1861),

AGENCY 109

fraud. On the other hand, the real Innocence of
both agent and principal repelled the notion of a
constructive fraud in either. A discordance of views ?
varying with the point from which the subject was
looked at, was to be expected. 77 The language of
Lord Denman, just quoted, from Fuller v. Wilson^
was used with reference to this subject.

The restrictions which common-sense has imposed
on the doctrine of undisclosed principal are well-
known. An undisclosed principal may sue on Ms
agent's contract, but his recovery is subject to the
state of accounts between the agent and third per-
son. 84 He may be sued, but it is held that the
recovery will be subject to the state of accounts be-
tween principal and agent. If the principal has paid
fairly before the agency was discovered; but it is,
perhaps, doubtful whether this rule or the qualifica-
tion of it is as wise as the former one. 85

Then as to ratification. It has nothing to do with
estoppel, 86 but the desire to reduce the law to general
principles has led some courts to cut it down to that
point. 87 Again, the right to ratify has been limited
by considerations of justice to the other party. It
has been said that the ratification must take place

8 * Rabone v. Williams, 7 T. R. 360 (1785) ; George t>. Clagett, 7
T. R. 359 (1797) ; Carr t>. Hinchcliff, 4 B. & C. 547 (1825) ; Borries v.
Imperial Ottoman Bank, L. R. 9 C. P. 38 (1873) ; Semenza v. Brinsley,
18 C. B. N. s. 467, 477 (i86$> ; Ex parte Dixon, 4 Ch. B 133,

85 Armstrong v. Stokes, L. R. 7 Q. B. 598, 610; Irvine v. Watson,
5 Q. B. D. 414.

86 See Metcalf v. Williams, 144 Mass. 452, 454, and cases cited.

87 Doughaday v. Crowell, 3 Stockt. (N.J.) 201; Bird v. Brown, 4
Exch. 788, 799.

no COLLECTED LEGAL PAPERS

at a time and under circumstances when the would-be
principal could have done the act; 88 and it has
been so held in some cases when it was manifestly
just that the other party should know whether the
act was to be considered the principal's or not, as in
the case of an unauthorized notice to quit, which the
landlord attempts to ratify after the time of the
notice has begun to run. 89 But it is held that bring-
ing an action may be subsequently ratified. 90

I now take up pleading. It is settled that an
assumpsit Ql to or by a servant for his master may
be laid as an assumpsit to or by the master. But
these are cases where the master has commanded the
act, and, therefore, as I have shown in the beginning
of this discussion, may be laid on one side. The same
thing is true of a trespass commanded by the
master. 92 But when we come to conduct which the
master has not commanded, but for which he is re-
sponsible, the difficulty becomes greater. It is, never-
theless, settled that in actions on the case the negli-
gence of the servant is properly laid as the negligence
of the master, 93 and if the analogy of the substantive
law is to be followed, and the fiction of identity is
to be carried out to its logical results, the same would
be true of all pleading. It is so held with regard to
fraud, "The same rule of law which imputes to the

88 Bird v. Brown, 4 Exch. 788.
s 9 Doe v. Goldwin, 2 Q. B. 143.

90 Ancona v. Marks, 7 H. & N. 686.

91 Seignior and Wolmer's Case, Godboldt, 360,

92 Gregory v. Piper, 9 B. & C. 591.

9 3 Brucker v. Fremont, 6 T. R. 659 (1796).

AGENCY in

principal the fraud of the agent and makes him
answerable for the consequences justifies the allega-
tion that the principal himself committed the
wrong. 7594 Some American cases have applied the
same view to trespass/ 5 and have held that this action
could be maintained against a master whose servant
had committed a trespass for which he was liable al-
though he had not commanded it. But these de-
cisions, although perfectly reasonable, seem to have
been due rather to inadvertence than to logic, in the
first instance, and the current of authority is the other
way. Baron Parke says, "The maxim 'Qui facit per
alium, facit per se' renders the master liable for all
the negligent acts of the servant in the course of his
employment, but that liability does not make the
direct act of the servant the direct act of the master.
Trespass will not lie against him; case will, In effect,
for employing a careless servant." * Considered as
reasoning, it would be hard to unite more errors in
as many words. "Qui facit per alium, facit per se"
as an axiom admitted by common-sense goes no
farther than to make a man liable for commanded
trespasses, and for them trespass lies. It it be ex-
tended beyond that point it simply embodies the
fiction, and the precise point of the fiction is that the
direct act of one is treated as if It were the direct act

94 Comstock, Ch. J., in Bennett v. Judson, 21 N. Y. 238 (i860) ; ace.
Barwick v. English Joint Stock Bank, L R. 2 Ex, 259 (1867).

95 Andrew v. Howard, 36 Vt. 248 (1863); May v. Bliss, 22 Vt. 477
(1850).

** Sharrod v. London & N, W. Ry Co., 4 Exch. 580, $$$ (1849).
Cf. Morley v. Gaisford, 2 H. BL 442 (*795K

H2 COLLECTED LEGAL PAPERS

of another. To avoid this conclusion a false reason
is given for the liability in general. 97 It is, as has
been shown, the fallacy of the Roman jurists, and is
disposed of by the decisions that no amount of care
in the choice of one's servant will help the master in
a suit against him/ 8 But although the reasoning is
bad, the language expresses the natural unwilling-
ness of sensible men to sanction an allegation that
the defendant directly brought force to bear on the
plaintiff, as the proper and formal allegation, when
as a matter of fact it was another person who did it
by his independent act, and the defendant is only
answerable because of a previous contract between
himself and the actual wrong-doer," Another cir-
cumstance may have helped. Usually the master is
not liable for his servant's wilful trespasses, and,
therefore, the actions against him stand on the ser-
vant's negligence as the alternative ground on which
anybody is responsible. There was for a time a con-
fused idea that when*the cause of action was the de-
fendant's negligence, the proper form of action was
always case. 100 Of course if this was true it applied
equally to the imputed negligence of a servant. And
thus there was the further possibility of confounding
the question of the proper form of action with the

97 The same reason is given in M'Manus v. Crickett, i East, 106, 108
(1800). Compare i Harg. Law Tracts, 347; Walcott v. Swampscott,
i Allen, 101, 103 ; Lane v. Cotton, 12 Mod. 472, 488, 489.
* Dansey v. Richardson, 3 EL & BI. 144, 161.

99 M'Mamis v. Crickett, i East, 106, no (1800) ; Brucker v. Fromont,
6T. R. 659 (170).

100 Ogle v. Barnes, 8 T. R, 188 (1799). Cf. Leame t>. Bray, 3 East,
593 (1803).

AGENCY 113

perfectly distinct one whether the defendant was
liable at all.

I come finally to the question of damages. In those
States where exemplary damages are allowed, the
attempt naturally has been made to recover such
damages from masters when their servant's conduct
has been such as to bring the doctrine into play.
Some courts have had the courage to be consistent. 101
"What is the principle," it is asked, "upon which
this rule of damages is founded? It is that the act of
the agent is the act of the principal himself. . . .
The law has established, to this extent, their legal
unity and identity. . . . This legal unity of the prin-
cipal and agent, in respect to the wrongful or tortious,
as well as the rightful acts, of the agent, done in the
course of his employment, is an incident which the
law has wisely attached to the relation, from its
earliest history." "If then the act of the agent be
the act of the principal in law, and this legal identity
is the foundation of the responsibility of the prin-
cipal, there can be no escape from his indemnity to
the full extent of civil responsiblity." An instruction
that the jury might give punitive damages was up-
held, and the plaintiff had judgment for $12,000.
Whatever may be said of the practical consequences
or the English of the opinion from which these ex-
tracts are made, it has the merit of going to the root
of the matter with great keenness. On the other

101 New Orleans, Jackson, & Great Northern R, R. Co. v. Bailey,
40 Miss. 395, 452, 453, 456 (1866) ; aca Atlantic & G. W. Ry. Co. v.
Dunn, 19 Ohio St. 162,

ii 4 COLLECTED LEGAL PAPERS

hand, other courts, more impressed by the monstrosity
of the result than by the elegantia juris, have per-
emptorily declared that it was absurd to punish a man
who had not been to blame, and have laid down the
opposite rule without hesitation. 102

I think I now have made good the propositions
which I undertook at the beginning of this essay to
establish. I fully admit that the evidence here col-
lected has been gathered from nooks and corners,
and that although in the mass it appears to me im-
posing, it does not lie conspicuous upon the face of
the law. And this is equivalent to admitting, as I
do, that the views here maintained are not favorites
with the courts. How can they be? A judge would
blush to say nakedly to a defendant: "I can state no
rational ground on which you should be held liable,
but there is a fiction of law which I must respect and
by which I am bound to say that you did the act com-
plained of, although we both know perfectly well that
it was done by somebody else whom the plaintiff could
have sued if he had chosen, who was selected with
the utmost care by you, who was in fact an eminently
proper person for the employment in which he was
engaged, and whom it was not only your right to
employ, but much to the public advantage that you
should employ." That would not be a satisfactory
form in which to render a decision against a master,
and it is not pleasant even to admit to one's self that

102 Hagar v. Providence & Worcester R.R., 3 R. I. 88 (1854) ; Cleghorn
v. New York Central & Hudson River R.R., 56 N. Y. 44 (1874). Cf.
Craker v. Chicago & N. W. R.R., 36 Wis. 657 (1875).

AGENCY 115

such are the true grounds upon which one is deciding.
Naturally, therefore, judges have striven to find more
intelligible reasons, and have done so in the utmost
good faith; for whenever a rule of law is in fact a
survival of ancient traditions, its ancient meaning is
gradually forgotten, and it has to be reconciled to
present notions of policy and justice, or to disappear.

If the law of the agency can be resolved into mere
applications of general and accepted principles, then
my argument fails; but I think it cannot be, and I
may suggest, as another ground for my opinion beside
those which I have stated heretofore, that the variety
of reasons which have been offered for the most im-
portant application of the fiction of identity, the
liability of the master for his servant's torts, goes far
to show that none of those reasons are good. Baron
Parke, as we have seen, says that case is brought in
effect for employing a negligent servant. Others
have suggested that it was because it was desirable
that there should be some responsible man who could
pay the damages. 103 Mr. Justice Grove thinks that
the master takes the risk of such offences as it must
needs be should come.

I admit my scepticism as to the value of any such
general considerations, while on the other hand I
should be perfectly ready to believe, upon evidence,
that the law could be justified as it stands when ap-
plied to special cases upon special grounds, 104

103 See Williams t>. Jones, 3 H. & C. 256, 263 ; i Harg. Law Tracts, 347.

104 Cf, what is said as to common carriers in Hie Common Law, 204,
205.

ii6 COLLECTED LEGAL PAPERS

There should have been added to the illustrations of a man's responsi-
bility within his house, given in the former article, that of a vassal
for attempts on the chastity of his lord's daughter or sister "tant
com elle est Damoiselle en son Hostel," in Ass. Jerusalem, c. 205, 217,
ed. 1690. The origin of the liability of innkeepers never has been studied,
so far as I know Beaumanoir, c. 36, seems to confine the liability to
things intrusted to the innkeeper, and to limit it somewhat even in that
case, and to suggest grounds of policy. The English law was more
severe, and put it on the ground that the guest for the time had come
to be under the innkeeper's protection and safety. 42 Ass., pi. 17, fol.
260. A capias was refused on the ground that the defendant was not in
fault, but an elegit was granted. 42 Ed. III. n, pi. 13. Notwithstand-
ing the foregoing reason given for it, the liability was confined, at an
early date, to those exercising a common calling (common hostler).
ii Hen. IV. 45, pi. 18. See The Common Law, 183-189, 203. See
further, 22 Hen. VI. 21, pi. 38; pi. 8. And note a limitation of
liability in cases of taking by the king's enemies, similar to that of
bailees. Plowden, 9, and note in margin; The Common Law, 177,
182, 199, 201. The references to the custom of England, or to the
lex terrce, are of no significance. The Common Law, 188. See further,
the titles of Glanvill and Bracton. Other citations could be given if
necessary.

PRIVILEGE, MALICE, AND INTENT*

THE law of torts as now administered has worked
Itself Into substantial agreement with a genera!
theory. I should sum up the first part of the theory
in a few words, as follows: Actions of tort are
brought for temporal damage. The law recognizes
temporal damage as an evil which its object is to
prevent or to redress, so far as is consistent with
paramount considerations to be mentioned. When
it is shown that the defendant's act has had temporal
damage to the plaintiff for its consequence, the next
question is whether that consequence was one which
the defendant might have foreseen. If common ex-
perience has shown that some such consequence was
likely to follow the act tinder the circumstances
known to the actor, he is taken to have acted with
notice, and is held liable, unless he escapes upon
the special grounds to which I have referred, and
which I shall mention in a moment. The standard
applied is external, and the words malice, intent,
and negligence, as used in this connection, refer to
an external standard. If the manifest probability
of harm is very great, and the harm follows, we say
that it is done maliciously or intentionally; if not so
great, but still considerable, we say that the harm is

* Harvard Law Review, Vol. VIII, x. (1894-)
117

u8 COLLECTED LEGAL PAPERS

done negligently; If there is no apparent danger, we
call it mischance,

Furthermore, so far as liability for an act depends
upon its probable consequences without more, the
liability usually is not affected by the degree of the
probability if it is sufficient to give the defendant
reasonable warning. In other words, for this pur-
pose commonly it does not matter whether the act is
called malicious or negligent. To make a prima
facie case of trespass or libel, if the likelihood of
bringing force to bear on the plaintffs person or of
bringing him into contempt goes to the height ex-
pressed by the word negligence, as above explained,
it need not go higher. There are exceptions, at
least in the criminal law. The degree of danger
under the known circumstances may make the differ-
ence between murder and manslaughter. 1 But the
rule is as I have stated. The foregoing general prin-
ciples I assume not to need further argument. 2

But the simple test of the degree of manifest
danger does not exhaust the theory of torts. In
some cases, a man is not liable for a very manifest
danger unless he actually intends to do the harm
complained of. In some cases, he even may intend
to do the harm and yet not have to answer for it: and,
as I think, in some cases of this latter sort, at least,
actual malice may make him liable when without it
he would not have been. In this connection I mean

1 2 Bigelow, Fraud, 117, n. 3 ; Commonwealth v. Pierce, 138 Mass.,
16$. Compare Hanson v. Globe Newspaper Co., i$g Mass., 293.

2 See The Common Law, Ch. 2, 3, 4.

PRIVILEGE, MALICE, AND INTENT 119

by malice a malevolent motive for action, without
reference to any hope of a remoter benefit to oneself
to be accomplished by the intended harm to another. 3
The question whether malice in this sense has any
effect upon the extent of a defendant's rights and
liabilities, has arisen in many forms. It is familiar
in regard to the use of land in some way manifestly
harmful to a neighbor. It has been suggested, and
brought to greater prominence, by boycotts, and
other combinations for more or less similar purposes,
although in such cases the harm inflicted is only a
means, and the end sought to be attained generally
is some benefit to the defendant. But before dis-
cussing that, I must consider the grounds on which
a man escapes liability in the cases referred to, even
if his act is not malicious.

It will be noticed that I assume that we have got
past the question which is answered by the test of
the external standard. There is no dispute that the
manifest tendency of the defendant's act is to inflict
temporal damage upon the plaintiff. Generally, that
result is expected, and often at least it is intended.
And the first question that presents itself is why the
defendant is not liable without going further. The
answer is suggested by the commonplace, that the
intentional infliction of temporal damage, or the
doing of an act manifestly likely to inflict such
damage and inflicting it, is actionable if done without
just cause. 4 When the defendant escapes, the court

3 See Rideout v. Knox, 148 Mass., 368, 373.

* Walker v. Cronin, 107 Mass., 555, 562 ; Mogul Steamship Co. v.
McGregor, 23 QJBJX 598, 613, 618.

iso COLLECTED LEGAL PAPERS

is of opinion that he has acted with just cause.
There are various justifications. In these instances,
the justification is that the defendant is privileged
knowingly to inflict the damage complained of.

But whether, and how far, a privilege shall be
allowed is a question of policy. Questions of policy
are legislative questions, and judges are shy of
reasoning from such grounds. Therefore, decisions
for or against the privilege, which really can stand
only upon such grounds, often are presented as hol-
low deductions from empty general propositions like
sic utere tuo ut alienum non laedas, which teaches
nothing but a benevolent yearning, or else are put
as if they themselves embodied a postulate of the
law and admitted of no further deduction, as when it
is said that, although there is temporal damage, there
is no wrong; whereas, the very thing to be found out
is whether there is a wrong or not, and if not, why
not.

When the question of policy is faced it will be
seen to be one which cannot be answered by general-
ities, but must be determined by the particular
character of the case, even if everybody agrees what
the answer should be, I do not try to mention or
to generalize all the facts which have to be taken
into account; but plainly the worth of the result, or
the gain from allowing the act to be done, has to be
compared with the loss which it inflicts. Therefore,
the conclusion will vary, and will depend on different
reasons according to the nature of the affair.

For instance, a man has a right to set up a shop

PRIVILEGE, MALICE, AND INTENT 121

in a small village which can support but one of the
kind, although he expects and intends to ruin a
deserving widow who is established there already.
He has a right to build a house upon his land in such
a position as to spoil the view from a far more valu-
able house hard by. He has a right to give honest
answers to inquiries about a servant, although he
intends thereby to prevent his getting a place. But
the reasons for these several privileges are different.
The first rests on the economic postulate that free
competition is worth more to society than it costs.
The next, upon the fact that a line must be drawn
between the conflicting interests of adjoining owners,
which necessarily will restrict the freedom of each; 5
upon the unavoidable philistinism which prefers use
to beauty when considering the most profitable way
of administering the land in the jurisdiction taken
as one whole; upon the fact that the defendant does
not go outside his own boundary; and upon other
reasons to be mentioned in a moment. The third,
upon the proposition that the benefit of free access
to information, in some cases and within some limits,
outweighs the harm to an occasional unfortunate. I
do not know whether the principle has been applied
in favor of a servant giving a character to a master.

Not only the existence but the extent or degree of
the privilege will vary with the case. Some privi-
leges are spoken of as if they were absolute, to bor-
row the language familiar in cases of slander. For

5 See Middlesex Company v. McCtae, 149 Mass. 103, 104; Boston
Ferrule Company v. Hills, 159 Mass. 147, 149, 150.

122 COLLECTED LEGAL PAPERS

instance, in any common case, apart from statutory
exceptions, the right to make changes upon or in a
man's land is not affected by the motive with which
the changes are made. Were it otherwise, and were
the doctrine carried out to its logical conclusion,
an expensive warehouse might be pulled down on
the finding of a jury that it was maintained mali-
ciously, and thus a large amount of labor might be
wasted and lost. Even if the law stopped short of
such an extreme, still, as the motives with which the
building was maintained might change, the question
would be left always in the air. There may be other
and better reasons than these and those mentioned
before, or the reasons may be insufficient. 6 I am
not trying to justify particular doctrines, but to ana-
lyze the general method by which the law reaches
its decision.

So it has been thought that refusing to keep a man
in one's service, if he hired a house of the plaintiff,
or dealt with him, was absolutely privileged/ Here
the balance is struck between the benefit of un-
fettered freedom to abstain from making the con-
tract, on the one side, and the harm which, may be
done by the particular use of that freedom, on the
other.

It is important to notice that the privilege is not
a general one, maliciously to prevent making con-

See i Ames & Smith, Cases on Torts, 750, n.

7 Heywood v. Tillson, 75 Me. 225; Payne v. Western & Atlantic
R. R., 13 Lea, 507. See Capital and Counties Bank v. Henry, 7 App.
Cas. 741-

PRIVILEGE, MALICE, AND INTENT 123

tracts with the plaintiff, but is attached to the par-
ticular means employed. It is a privilege to abstain
from making a certain kind of contract oneself,
whether maliciously, in order to prevent others from
contracting with the plaintiff, or for a more harm-
less motive. Still more important it is, and more
to the point of this paper, that, in spite of many gen-
eral expressions to the contrary, the conclusion does
not stand on the abstract proposition that malice
cannot make a man liable for an act otherwise law-
ful. It is said that if this were not so a man would
be sued for his motives. But the proposition is no
more self-evident than that knowledge of the cir-
cumstances under which an act is done cannot affect
liability, since otherwise a man would be sued for
his knowledge, a proposition which is obviously un-
true. In a proper sense, the state of a man's con-
sciousness always is material to his liability, and
when we are considering the extent of a man's privi-
lege knowingly to inflict pecuniary loss upon his
neighbor, it would not be surprising to find that in
some cases motives made all the difference in the
world. I pass to the inquiry, whether privilege,
sometimes at least, is not dependent upon the motives
with which the act complained of is done.

Take a case where, as in the last one, the harm
complained of is a malicious interference with busi-
ness, but where the means employed (the act of the
defendant) are different. I assume that the harm
is recognized by the law as a temporal damage, that
not being the object of this discussion. I assume

124 COLLECTED LEGAL PAPERS

also that the defendant's act is not unlawful or a
cause of action unless it is made so by reason of
the particular consequence mentioned, and the de-
fendant's attitude toward that consequence. I as-
sume 5 finally, that the acts or abstinences of third
persons induced by the defendant are lawful If a
case could be put where the defendant's act was
justified by no grounds of policy more special or other
than the general one of letting men do what they
want to do, it would present the point which I wish
to raise. Such a case I find hard to imagine, but if
one should occur, I think courts would say that the
benefit of spontaneity was outweighed by the damage
which it caused. 8 The gratification of ill-will, being
a pleasure, may be called a gain, but the pain on
the other side is a loss more important. Otherwise^
why allow a recovery for a battery? There is no
general policy in favor of allowing a man to do harm
to his neighbor for the sole pleasure of doing harm.

But there is no need to stay in such thin air.
Let us suppose another case of interference with busi-
ness by an act which has some special grounds of
policy in its favor. Take the case of advice not to
employ a certain doctor, given by one in a position of
authority. To some extent it is desirable that people
should be free to give one another advice. On the

8 Possibly, one is suggested by Keeble v. Hickeringill, n East, $74 n.,
and Tarleton v. M'Gawley, Peake, 205 we may suppose people to
be kept away from the plaintiff by the malicious firing of guns, other-
wise lawful. These cases will be found in i Ames & Smith, Cases of
Torts, which contains an excellent selection of decisions bearing on the
subject of this article.

PRIVILEGE, MALICE, AND INTENT 125

other hand, commonly it is not desirable that a man
should lose his business. The two advantages run
against one another, and a line has to be drawn.
So absolute a right of way may not be given to
advice as to abstaining from some contracts which
have been mentioned. In such a case, probably it
would be said that if the advice was believed to be
good, and was given for the sake of benefiting the
hearers, the defendant would not be answerable.
But if it was not believed to be for their benefit, and
was given for the sake of hurting the doctor, the
doctor would prevail. 9 If the advice was believed
to be good, but was volunteered for the sake of doing
harm only, courts might differ, but some no doubt
would think that the privilege was not made out. 10
What the effect of bad faith without malice would
be Is outside my subject.

It will be seen that the external standard applied
for the purpose of seeing whether the defendant had
notice of the probable consequences of his act, has
little or nothing to do with the question of privilege.
The defendant is assumed to have had notice of the

9 See Morasse v. Brochu, 151 Mass. 567; Tasker u, Stanley, 153
Mass. 148; Delz v. Winfree, 80 Texas, 400, 40$. The cases often are
ob'scure as to the precise nature of the act done, which seems to me
a most important fact. In Lumley v. Gye, 2 El. & BL 216, the allega-
tion was that the defendant "enticed and procured" the third person
to break the contract. In Bowen t/. Hall, 6 Q.B.D. 333, the defendant
Hall persuaded another to break his contract (pp. 338, 339). In Old
Dominion Steamship Co. v. McKenna, 30 Fed. Rep. 48, the defendant
"procured plaintiff's workmen" to leave their work, and so on.

10 See Stevens v. Sampson, 5 Ex. D. S3*

126 COLLECTED LEGAL PAPERS

probable consequences of his act, otherwise the ques-
tion of privilege does not arise. Generally, the harm
complained of is not only foreseen but intended. If
there is no privilege, the difference between notice
of consequences and malice is immaterial. If the
privilege is absolute, or extends to malicious acts, of
course it extends to those which are not so. If the
privilege is qualified, the policy in favor of the de-
fendant's freedom generally will be found to be quali-
fied only to the extent of forbidding him to use for
the sake of doing harm what is allowed him for the
sake of good. Suppose, for instance, advice is given
which manifestly tends to injure the plaintiff, but
without thinking of him in fact, and that the advice
would be privileged unless given in bad faith or
maliciously, if expressly directed against the plaintiff.
The advice could not be given maliciously as against
the plaintiff unless he either was thought of, or was
embraced in a class which was thought of.

Perhaps one of the reasons why judges do not
like to discuss questions of policy, or to put a deci-
sion in terms upon their views as law-makers, is that
the moment you leave the path of merely logical
deduction you lose the illusion of certainty which
makes legal reasoning seem like mathematics. But
the certainty is only an illusion, nevertheless. Views
of policy are taught by experience of the interests
of life. Those interests are fields of battle. What-
ever decisions are made must be against the wishes
and opinion of one party, and the distinctions on
wMdh. they go will be distinctions of degree* Even

PRIVILEGE, MALICE, AND INTENT 127

the economic postulate of the benefit of free compe-
tition which I have mentioned above, is denied by
an important school.

Let me illustrate further. In England, it is lawful
for merchants to combine to offer unprofitably low
rates and a rebate to shippers for the purpose of
preventing the plaintiff from becoming a competitor,
as he has a right to do, and also to impose a forfeiture
of the rebate, and to threaten agents with dismissal
in case of dealing with him. 11 But it seems to be
unlawful for the officer of a trade union to order the
members not to work for a man if he supplies goods
to the plaintiff, for the purpose of forcing the plain-
tiff to abstain from doing what he has a right to do. 12

In the latter case the defendant's act, strictly, was
giving an order, not refusing to contract; but per-
haps the case would have been decided the same way
if the same course had been adopted by unanimous
vote of the union. 13 So the right to abstain from
contracting is not absolutely privileged as against
interference with business. The combination and
the intent to injure the plaintiff, without more, do
not seem to be the ground. Both those elements were
present to an equal degree in the Mogul Steamship
Company's case. It is true the jury found malice.

11 Mogul Steamship Company, Limited, V. McGregor, 1892, App.
Cas. 25 ; 23 Q.B.D. 598. See also Bowen v. Matheson, 14 Allen, 499
(1867); Bohn Manufacturing Company v. HoIIis, 55 N.WJL 1119
(Minnesota, 1893).

12 Temperton v. Russell, 1893, i Q. B. 7*5-

is See Carew v. Rutherford, 106 Mass, i, and the cases below, as
to combination. See, also, the further comments toward the end of
this article.

128 COLLECTED LEGAL PAPERS

But looking at the evidence, the instructions of the
judge, and the judgments, evidently they did not
mean that the ultimate motive of the defendants was
not to benefit themselves. The defendants meant to
benefit themselves by making the plaintiff submit,
just as, in the other case, the defendants meant to
benefit themselves by driving the plaintiff away. It
might be said that the defendants were free not to
contract, but that they had no right to advise or
persuade the contractors who would have dealt with
the plaintiff not to do so, and that, by communicating
the union's willingness to deal with the contractors,
if they would not deal with the plaintiff, the defend-
ants were using such persuasion. But if this refine-
ment is not a roundabout denial of the freedom not
to contract, since a man hardly is free in his abstain-
ing unless he can state the terms or conditions upon
which he intends to abstain, at all events the same
mode of reasoning could be used in the cases where
the defendant escapes. The ground of decision
really comes down to a proposition of policy of rather
a delicate nature concerning the merit of the par-
ticular benefit to themselves intended by the defend-
ants, and suggests a doubt whether judges with differ-
ent economic sympathies might not decide such a
case differently when brought face to face with the
issue.

Another illustration may be drawn from other
cases upon boycotts. Acts which would be privi-
leged if done by one person for a certain purpose
may be held unlawful if done for the same purpose

PRIVILEGE, MALICE, AND INTENT 129

in combination. 14 It is easy to see what trouble
may be found in distinguishing between the combi-
nation of great powers in a single capitalist, not to
speak of a corporation, and the other form, of combi-
nation. 15 It is a question of degree at what point
the combination becomes large enough to be wrong,
unless the knot is cut by saying that any combina-
tion however puny is so. Behind all is the question
whether the courts are not flying in the face of the
organization of the world which is taMng place so
fast, and of its inevitable consequences. I make
these suggestions, not as criticisms of the decisions,
but to call attention to the very serious legislative
considerations which have to be weighed. The
danger is that such considerations should have their
weight in an inarticulate form as unconscious preju-
dice or half conscious inclination. To measure them
justly needs not only the highest powers of a judge
and a training which the practice of the law does
not insure, but also a freedom from prepossessions
which is very hard to attain. It seems to me desir-
able that the work should be done with express
recognition of its nature. The time has gone by
when law is only an unconscious embodiment of the
common will. It has become a conscious reaction

14 See State t>. Donaldson, 32 NJ. 191; State u. Glidden, 55 Conn.
46; Camp v. Commonwealth, 84 Va. 927; Lucke v. Clothing Cutters 1 &
Trimmers' Assembly No. 7, 507, K. of L., 26 AtL R. 5t>5; Jackson ti.
Stanfield, 36 NJE.R. 345 (Indiana, 1894) ; Mogul Steamship Company
v. McGregor, 23 Q.B.D. $98, 616 (1892) ; App, Cas. 25, 45. The cases
are not quite unanimous. Bohn Manufacturing Co. v. Hollis, 55 N,W.R.
1119 (Minnesota, 1893).

is 23 Q.BJ). 617.

I3 o COLLECTED LEGAL PAPERS

upon itself of organized society knowingly seeking to
determine its own destinies.

To sum up this part of the discussion, when a
responsible defendant seeks to escape from liability
for an act which he had noticed was likely to cause
temporal damage to another, and which has caused
such damage in fact, he must show a justification.
The most important justification is a claim of privi-
lege. In order to pass upon that claim, it is not
enough to consider the nature of the damage, and
the effect of the act, and to compare them. Often
the precise nature of the act and its circumstances
must be examined. It is not enough, for instance,
to say that the defendant induced the public, or a
part of them, not to deal with the plaintiff. We
must know how he induced them. If by refusing
to let them occupy a building, or to employ them,
the answer may be peremptory in his favor, without
regard to other circumstances. If by acts wrongful
for other reasons, the answer falls outside my sub-
ject. If by advice, or combined action not other-
wise unlawful, motive may be a fact of the first
importance. It is entirely conceivable that motive,
in some jurisdictions, should be held to affect all,
or nearly all, claims of privilege. The cases which
I have cited, by way of illustration, come from
different States, and might not be regarded as being
so consistent with each other as I have assumed them
to be. But in all such cases the ground of decision
is policy; and the advantages to the community, on
the one side and the other, are the only matters really

PRIVILEGE, MALICE, AND INTENT 131

entitled to be weighed. I only wish to add that thus
far, when the act of a third person is nearer to the
harm than the act of the defendant, I have assumed
the former to be lawful. I have said nothing as yet
of privilege in connection with wrongful acts of
others. Also I have left on one side exceptional
cases where the act induced by the defendant would
have been a tort or a crime had the third person
had his knowledge, for instance, the innocent giving
of a poisoned apple. If the harm were of a more
serious nature than loss of business, that naturally
would narrow the privilege, but it is not likely to be
so in the cases which I have had in mind.

I now pass to an entirely different dass of cases.
In these, intent to produce the harm complained of
has an importance of its own, as distinguished from
notice of danger on the one side, and from actual
malice on the other. To begin at a little distance,
one of the difficulties which must occur to every
one in thinking of the external standard of liability
is: if notice so determined is the general ground, why
is not a man who seUs fire-arms answerable for
assaults committed with pistols bought of him, since
he must be taken to know the probability that, sooner
or later, some one will buy a pistol of him for some
unlawful end? I do not think that the whole answer
to such questions is to be found in the doctrine of
privilege. Neither do I think that any instruction
is to be got from the often-repeated discussions as
to cause. It is said that the man whose wrong-doing
is nearest to the injury is the only cause of it. But,

1 3 2 COLLECTED LEGAL PAPERS

as is pointed out in Hayes v. Hyde Park, 18 a man
whose act is nearest to the injury is as much a cause
when his act is rightful, as when it is wrongful. Yet
an intervening act may not exonerate the defendant.

The principle seems to be pretty well established,
in this country at least, that every one has a right
to rely upon his fellow-men acting lawfully, and,
therefore, is not answerable for himself acting upon
the assumption that they will do so, however im-
probable it may be. There may have been some
nibbling at the edges of this rule in strong cases, for
instance, where only the slight negligence of a third
person intervenes, or where his negligence plays only
a subordinate part, but the rule hardly will be dis-
puted. It applies in favor of wrong-doers as well as
others. The classical illustration is, that one who
slanders another is not liable for the wrongful repe-
tition of the slander without his authority; but the
principle is general. 17 If the repetition were privi-
leged, and so rightful, and also were manifestly
likely to happen, the law might be otherwise. 18

But the case is different when a defendant has not
stopped at the point of saying, I take it for granted
that my neighbors will keep to the law, and I shall
not let myself be checked in doing what I like, by
the danger which there would be, if they acted un-

** 153 Mass, 514.

IT Ward i). Weeks, 7 Bing. 211, 215; Cuff v. Newark & New York
R.R., 6 Vroom, 17, 32; Clifford v. Atlantic Mills, 146 Mass. 47; Tasker
v. Stanley, 153 Mass. 148, 150,

18 Elmer v. Fessenden, 151 Mass. 359, 362, and cases cited. Sec
Hayes v, Hyde Park, 153 Mass. 514.

PRIVILEGE, MALICE, AND INTENT 133

lawfully; when, Instead, he not only has expected
unlawful conduct, but has acted with the intent to
bring about consequences which could not happen
without the help of such unlawful acts on the part of
others. The difference is illustrated by the differ-
ence between the general right of a landowner, as
against trespassers, to put his land in what condition
he likes, and his liability, even to trespassers (with-
out notice), for man-traps or dog-spears. In the
latter case, he has contemplated expressly what he
would have had a right to assume would not happen,
and the harm done stands just as if he had been on
the spot and had done it in person. His intent may
be said to make him the last wrong-doer. 19

So when the wrongful act expected is that of a
third person, and not of the plaintiff, the defendant
may be liable for the consequences of it. There is
no doubt, of course, that a man may be liable for the
unlawful act of another, civilly as well as criminally,
and this now is pretty well agreed when the act is
a breach of contract as well as when it is a tort. 20
He is liable, if having authority he commands it; he
may be liable if he induces it by persuasion. I do
not see that it matters how he knowingly gives the
other a motive for unlawful action, whether by fear,
fraud, or persuasion, if the motive works. But, in
order to take away the protection of his right to rely

19 Bird v. Holbrook, 4 Bing. 628, 641, 642. See Jordin v. Cramp, 8
M. & W. 78; Chenery v. Fitchburg R.R., 160 Mass. 211, 213, 214.

20 Lumley v. Gye, 2 EL & BL 216; i Ames & Smith, Cases on
Torts, 600, 612, note by Professor Ames.

134 COLLECTED LEGAL PAPERS

upon lawful conduct, you must show that he intended
to bring about consequences to which that unlawful
act was necessary. Ordinarily, this is the same as
saying that he must have intended the unlawful act.
To sum the matter up in a rule, where it is sought to
make a man answerable for damage, and the act of
a third person is nearer in time than the defendant's
to the harm, if the third person's act was lawful, it
stands like the workings of nature, and the question
is whether it reasonably was to be anticipated or
looked out for; but if the third person's act was un-
lawful, the defendant must be shown to have
intended consequences which could not happen with-
out the act 21

Although actual intention is necessary in this class
of cases, malice commonly is not so, except so far as
the question of liability for an intervening wrong-
doer is complicated with a question of privilege.
The damage is assumed to be inflicted unlawfully,
since the act of the third person which is nearest to
it is assumed to be unlawful If the defendant has
no notice that the third person's act will or may be
unlawful, he is free on general principles. But, not-
withstanding the reserves of Bowen v. Hall, 22 if he

21 I venture to refer to a series of cases in which my views will
be found illustrated. Hayes v. Hyde Park, i$3 Mass. 514; Burt v.
Advertiser Newspaper Co., 154 Mass. 238, 347 J Tasker v. Stanley, i$3
Mass. 148. [Note that, in this case, it did not appear that the conduct
advised (the departure of the plaintiff's wife) would have been unlaw-
ful in any sense, on the facts assumed as the basis of the advice. It did
not appear what those facts were. The question of privilege, therefore,
was the main one.] Elmer v. Fessenden, 151 Mass. 359, 32; Clifford v.
Atlantic Cotton Mills., 146 Mass. 47.

a* 6 Q.B.D. 333, 338.

PRIVILEGE, MALICE, AND INTENT 135

knows the act will be unlawful, it seems plain that
persuasion to do it will make him liable as well when
not malicious as when malicious. I cannot believe
that bona fide advice to do an unlawful act to the
manifest harm of the plaintiff ought to be any more
privileged than such advice, given maliciously, to do
a lawful act. Of course, I am speaking of effectual
advice. It seems to me hard for the law to recog-
nize a privilege to induce unlawful conduct. But,
whether there is such a privilege or not, what I am
driving at is, that apart from privilege there is no
defence; that is to say, that malice is not material,
on any other ground than that of privilege, to liability
for the wrongful act of another man.

At this point, then, we have come again upon the
question of privilege. When the purpose of the de-
fendant's act is to produce the result complained of
by means of illegal acts of third persons, his privilege
will be narrower than when he intends to induce only
legal acts. As I have said, I do not suppose that
the privilege extended to honest persuasion to do
harm to the plaintiff by lawful conduct, would extend
to similar persuasion to do it by unlawful conduct.
Take acts of which the privilege is greater. Could a
man refuse to contract with A unless he broke his
contract with B? There are cases by respectable
courts which look as if he could not. 23 What I have
called heretofore the privilege not to contract really

23 Tcmperton v. Russell (1893), i Q.B1X 7*5, mentioned above for
a different point. In this case, there was the additional element of
combination. See the other cases cited above, p. 129, n. 14.

I 3 6 COLLECTED LEGAL PAPERS

is only the negative side of a privilege to mate con-
tracts. I stated it in the negative way in order to
make the claim of an absolute privilege more plaus-
ible. But the right not to contract in a certain event,
and to say that you will not, means nothing unless
it is implied that you offer a contract, that is, an
act on your part, in the other event. If no such offer
is understood, then you simply refuse to contract,
whatever happens, which undoubtedly you may do.
But there is no absolute privilege to make agree-
ments which are not unlawful on their face, that is
to say, which do not necessarily and always tend to
produce a result that the law wishes to prevent. An
agreement may be unlawful, because under the par-
ticular circumstances it tends to produce such a
result, although in general harmless.

The question has arisen, how close the connection
must be between an agreement for instance, a
sale and the result sought to be prevented, in
order to make the sale unlawful. I presume that
the same degree of connection which would have that
effect would make the seller liable if the result in
question was a tort. In Graves v. Johnson, 24 where
intoxicating liquor was found to have been sold in
Massachusetts, "with a view to" an illegal resale by
the purchaser in Maine, a majority of the court inter-
preted the words quoted as meaning that the seller
intended that the buyer should resell unlawfully,
and was understood by the latter to be acting in aid
of that purpose, and held the sale unlawful. But it

24 156 Mass. an.

PRIVILEGE, MALICE, AND INTENT 137

may be conjectured that the decision would have
been different if the seller merely had known of the
buyer's intent without encouraging or caring about it.
In questions of privilege, the nature of the de-
fendant's act, the nature of the consequences, and
the doseness of the bond between them, may vary
indefinitely. We may Imagine the conduct to be of
the most highly privileged kind, like the use of land,
and to consist of imposing conditions upon the letting
of rooms or the removal of a building cutting off a
view. We may imagine the conditions to be stated
with intent, but without any persuasion or advice,
that they should be satisfied, and we may imagine
them to be illegal acts anywhere from murder down
to breach of a contract to take the Herald for a
month. Interesting cases of such a kind might be
framed for a moot court, although I hardly expecf
to meet one in practice. But, as I have said, my ob-
ject is not to decide cases, but to make a little clearer
the method to be followed in deciding them.

LEARNING AND SCIENCE*

SPEECH AT A DINNER OF THE HARVARD LAW SCHOOL

ASSOCIATION IN HONOR OF PROFESSOR

C. C. LANGDELL, JUNE 25, 1895

MR. PRESIDENT AND GENTLEMEN OF THE ASSOCIA-
TION:

As most of those here have graduated from the
Law School within the last twenty-five years, I know
that I am in the presence of very learned men. For
my own part, lately my thoughts have been turned to

"old, unhappy, far-off things,
And battles long ago";

and when once the ghosts of the dead fifers of thirty
years since begin to play in my head, the laws are
silent. And yet as I look around me, I think to
myself, like Correggio, "I too am, or at least have
been, a pedagogue." And as such I will venture a
reflection.

Learning, my learned brethren, is a very good
thing. I should be the last to undervalue it, having
done my share of quotation from the Year Books.
But it is liable to lead us astray. The law, so far
as it depends on learning, is indeed, as it has been
called, the government of the living by the dead.

* From Speeches (1913), Little, Brown, & Co.
138

LEARNING AND SCIENCE 139

To a very considerable extent no doubt it is in-
evitable that the living should be so governed. The
past gives us our vocabulary and fixes the limits of
our imagination ; we cannot get away from it. There
is, too, a peculiar logical pleasure in making manifest
the continuity between what we are doing and what
has been done before. But the present has a right
to govern itself so far as it can; and it ought always
to be remembered that historic continuity with the
past is not a duty, it is only a necessity.

I hope that the time is coming when this thought
will bear fruit. An ideal system of law should draw
its postulates and its legislative justification from
science. As it is now, we rely upon tradition, or
vague sentiment, or the fact that we never thought
of any other way of doing things, as our only warrant
for rules which we enforce with as much confidence
as if they embodied revealed wisdom. Who here can
give reasons of any different kind for believing that
half the criminal law does not do more harm than
good? Our forms of contract, instead of being made
once for all, like a yacht, on lines of least resistance,
are accidental relics of early notions, concerning
which the learned dispute. How much has reason
had to do in deciding how far, if at all, it is expedient
for the State to meddle with the domestic relations?
And so I might go on through the whole law.

The Italians have begun to work upon the notion
that the foundations of the law ought to be scientific,
and, if our civilization does not collapse, I feel pretty
sure that the regiment or division that follows us

140 COLLECTED LEGAL PAPERS

will carry that flag Our own word seems the last
always; yet the change of emphasis from an argu-
ment in Plowden to one in the time of Lord Ellen-
borough, or even from that to one in our own day,
Is as marked as the difference between Cowley's
poetry and Shelley's. Other changes as great will
happen. And so the eternal procession moves on, we
in the front for the moment; and, stretching away
against the unattainable sky, the black spearheads
of the army that has been passing in unbroken line
already for near a thousand years.

EXECUTORS *

Ax the present day executors and administrators
hold the assets of the estate In a fiduciary capacity.
Their rights and liabilities in respect of the fund in
their hands, are very like those of trustees. But
this way of regarding them is somewhat modern. I
wish to call attention to several changes in the law
which have taken place at different times and with-
out reference to each other, for the purpose of sug-
gesting that they are witnesses of an older condition
of things in which the executor received his testator's
assets in his own right. As usually is the case
with regard to a collection of doctrines of which
one seeks to show that they point to a more general
but forgotten principle, there can be found a plaus-
ible separate explanation for each or for most of
them, which some, no doubt, will regard as the last
word to be said upon the matter.

I have shown elsewhere that originally the only
person liable to be sued for the debts of the deceased,
if they were disputed and had not passed to judgment
in the debtor's lifetime, was the heir. 1 In GlanvflPs

* Harvard Law Review, Vol. IX, 42. (1895.)

i Early English Equity, i Law Quart. Rev. 165. The Common
Law, 348. Bracton 4070, 61, o8a, ioia, 1130. The article referred to
in the Law Quarterly Review shows the origin and early functions of
the executor. It is not necessary to go into them here.

141

142 COLLECTED LEGAL PAPERS

time, if the effects of the ancestor were not sufficient
for the payment of his debts the heir was bound to
make up the deficiency out of his own property. 2
In the case of debts to the king, this liability con-
tinued as late as Edward III., 8 royalty like religion
being a conservator of archaisms. The unlimited
liability was not peculiar to England. 4 While it con-
tinued we may conjecture with some confidence that
a judgment against the heir was not confined to the
property which came to him from his ancestor, and
that such property belonged to him outright. At a
later date, M. Viollet tells us, the French customary
law borrowed the benefit of inventory from the
Roman law of Justinian. The same process had
taken place in England before Bracton wrote. But
in the earliest sources it looks as if the limitation of
liability was worked out by a limitation of the
amount of the judgment, not by confining the judg-
ment to a particular fund. 6

2 "Si vero non suffidunt res defuncti ad debita persolvenda, tune
quidem haeres ejus defectum ipsum de suo tenetur adimplere: ita dico
si habuerit aetatem haeres ipse." GlanviU, Lib. 7, C. 8. Regiam
Majestatem, Book 2, C. 39, 3-

s 2 Rot. ParL 240, pi. 35. St. 3 Ed. I., C. 19.

4 Ass. Jems., Bourgeois, C. cxciii. 2 Beugnot, 130. Paul Viollet,
Hist, du Droit Franc.., 2d ed. 829.

6 Viollet, op. cti. The Common Law, 347, 348. "Haeres autem
defuncti tenebitur ad debita preadecessorts sui acquietanda eatenus
quatenus ad ipsum peruenerit, sci. de haereditate defuncti, et non
ultra" etc. Bracton, 61 a. "Notandum tamen est, quod nuUus de
antecessoris debito tenetur respondere ultra valorem huius, quod de eius
keredUate dignosatur possidere" Somma, Lib. 2, C. 22, s, & 1
Ludewig, Reliq. Manuscript, 308, 309. Grand Coustum. C. 88. Com-
pare also St Westm. IL (13 Ed. L) C. 19, as to the liability of the

EXECUTORS 143

As was shown In the article above referred to, the
executor took the place of the heir as universal suc-
cessor within the limits which still are familiar,
shortly after Bracton wrote. His right to sue and
the right of others to sue him in debt seemed to have
been worked out at common law. 6 It hardly needs
argument to prove that the new rights and burdens
were arrived at by treating the executor as standing
in the place of the heir. The analogy relied on is
apparent on the face of the authorities, and in books
of a later but still early date we find the express state-
ment, executores wnversales loco faaeredis mnt? or
as it is put in Doctor and Student, "the heir, which
in the laws of England is called an Executor."

Now when executors thus had displaced heirs par-
tially in the courts, the question is what was their
position with regard to the property in their hands.
Presumably it was Hke that of heirs at about the
beginning of the fourteenth century, but I have had
to leave that sofnewhat conjectural. The first mode
of getting at an answer is to find out, if we can, what
was the form of judgment against them. For if the

ordinary: "Obttgetw decetero Ordwwms ad respondendum de deb&is,
quatenns bona dejimcti snfficwnt eodem m&do quo executives knjus
modo erespondtre tmerentur si testamcnivm fecisset:* See the cases
stated below. I know of no early precedents or forms of judg-
ments against heirs. I wish that Mr. Maitland would give the
world the benefit of hfc knowledge and command of the sources on the
matter. Later the judgments against heirs was limited to asaets de-
scended. Townesend, Second Book of Judgments, 67 pL 26.

Y. B. 20 & 2i Ed. 1^ 374; 3<> Ed. L, 238; Ed* IH-, *4*
Id. 186. (Rolls ed.)

* Lyndwood, ProvmciaJe. Ob. 3, Tit 13, CL 5- (Sfcrf****** borne
memoriae), note, at woid Intestate. Dr. and Stud. Dial I, Ch. 19-

144 COLLECTED LEGAL PAPERS

judgment ran against them personally, and was not
limited to the goods of the deceased in their hands,
It is a more than probable corollary that they held
those assets in their own right. The best evidence
known to me is a case of the year 1292 (21 Ed. I.)
in the Rolls of Parliament. 8 Margery Moygne re-
covered two judgments against Roger Bertelmeu as
executor of William the goldsmith. In the first case
he admitted the debt and set up matter in discharge.
This was found against him except as to 60, as to
which the finding was in his favor, and the judgment
went against him personally for the residue. In the
second case the claim was for 200 marks, of which
the plaintiff's husband had endowed her ad ostium
ecclesiae. The defendant pleaded that the testator
did not leave assets sufficient to satisfy his creditors.
The plaintiff replied that her claim was preferred,
which the defendant denied. The custom of bor-
oughs was reported by four burgesses to be as
the plaintiff alleged, and the plaintiff had a judg-
ment against the defendant generally. The defend-
ant complained of these judgments in Parliament,
and assigned as error that there came to his hands
only 27 at most, and that the two judgments
amounted to 40 and more. The matter was com-
promised at this stage, but enough appears for my
purposes. If the defendant was right in his con-
tention, it would follow in our time that the judg-
ment should be de bonis testatoris, yet it does not

8 i Rot. Parl. 107, 108. It may be remarked, by the way, that an
excellent example of trustee process will be found in this case.

EXECUTORS 145

seem to have occurred to Mm to make that sug-
gestion. He assumed, as the court below assumed,
that the judgment was to go against him personally*
The limitation for which he contended was in the
amount of the judgment, not in the fund against
which it should be directed.

There is some other evidence that at this time,
and later, the judgment ran against the executor
personally, and that the only limitation of liability
expressed by it was in the amount. In the first case
known to me in which executors were defeated on a
plea of plene administramt it was decided that the
plaintiff should recover of the defendants "without
having regard to whether they had to the value of
the demand/ 59 Afterwards it was settled that in
such cases the judgment for the debt should be of
the goods of the deceased, and that the judgment
for the damages should be general. 10 But whether
the first case was right in its day or not, the material
point is the way in which the question is stated. The
alternatives are not a judgment de bonis testatoris
and a general judgment against the defendants, but
a judgment against the defendants limited to the
amount in their hands, and an unlimited judg-
ment against them.

But if it be assumed that a trace of absolute
ownership still was shown in the form of the judg-

Y. B. 17 Ed. HI. 66, pi 83.

10 Y. B. ii Hen. IV. 5, pi. n. Skrene in 7 Hen. IV. 12, 13, pL
8. Martin in 9 Hen. VI. 44, pi. 26. Danby in 11 Hen. VI. 7, 8, pL 12.
Dyer, 32 a, pL 2. i Roll. Abr. 931, D. pi. 3. i Wms. Saund. 336, n. 10.

146 COLLECTED LEGAL PAPERS

ment, when we come to the execution we find a dis-
tinction between the goods of the testator and those
of the executor already established. In 12 Edward
III. a judgment had been recovered against a parson,
who had died. His executors were summoned, and
did not appear. Thereupon the plaintiff had fieri
facias to levy on the chattels of the deceased in the
executors' hands (de lever ses chateux qil avoient
entre may us des biens la mort), and on the sheriff
returning that he had taken 2os and that there were
no more, execution was granted of the goods of the
deceased which the executors had in their hands
on the day of their summons, or to the value out of
the executors' own goods if the former had been
eloigned. 11

I now pass to two other rules of law for each
of which there is a plausible and accepted explana-
tion, but which I connect with each other and with
my theme. In former days, I was surprised to read
in Williams on Executors, that the property in the
ready money left by the testator "must of necessity
be altered; for when it is intermixed with the execu-
tor's own money, it is incapable of being distinguished
from it, although he shall be accountable for its
value." 12 What right, one asked oneself, has an
executor to deal in that way with trust funds? In

n Y. B. 13 Ed. III. 398-401 (A.D. 1338). Ace. 2 Rot. Parl. 397,
No. 1 10 (Ed. HI.)- See also the intimation of Wychingham, J., in 40
Ed. m. 15, pL i. Fleta, Lib. 2, C. 57, f 6.

12 i Wms. Exors. (7th ed.), 646. In the ninth edition this is quaMed
slightly hy the editor in a note. (9th ed.) 566, 567 and n. (p).

EXECUTORS 147

this Commonwealth at least the executor would be
guilty of a breach of duty if he mingled money of
his testator with his own. Another passage in Wil-
liams shows that we must not press his meaning too
far. It is stated that money of the testator which
can be distinguished does not pass to a bankrupt
executor's assignee. 13 The principal passage merely
was repeated from the earlier text-books of Went-
worth and Toller. In Wentworth the notion appears
to be stated as a consequence of the difficulty of dis-
tinguishing pieces of money of the same denomina-
tion from each other a most impotent reason. 14
There is no doubt that similar arguments were used
in other cases of a later date than Wentworth. 15
But I prefer to regard the rule as a survival, es-
pecially when I connect it with that next to be men-
tioned.

As late as Lord Ellenborough's time it was the
unquestioned doctrine of the common law that the
executor was answerable absolutely for goods which
had come into his possession, and that he was not
excused if he lost them without fault, for instance,
by robbery. 16 Now it is possible to regard this as

is x Wms. Exors. 9th ed. 559. Howard v. Jemmett, 2 Burr. 1368,
1369, note; Farr v. Newman, 4 T.R. 621, 648.

i4 Wentworth, Executors (14^ ed. Philadelphia, 1832), 198.

is Whitecomb v. Jacob, i Salk. 160; Ford v. Hopkins, I Salk, 283,
284; Ryafl v. Rolle, i Atk. 165, 172; Scott v. Surman, Willes, 400,
403, 404. Rightly condemned quoad hoc in Re HaBetfs Estate, 13 Ch.
D. 696, 714, 715. See also Miller v. Race, i Burr. 452, 457 S.C. i Srn.
L. C.

i Crosse t>. Smith, 7 East, 246, 258.

148 COLLECTED LEGAL PAPERS

merely one offshoot pf the early liability of bailees
which still lingered alive, although the main root had
rotted and had been cut a century before by Chief
Justice Pemberton, and by the mock learning of Lord
Holt. 37 It is explained in that way by Wentworth/ 8
who wrote before the early law of bailment had been
changed, but with some suggestions of difference and
mitigation. If this explanation were adopted we
only should throw the discussion a little further back,
upon the vexed question whether possession was title
in primitive law. But it is undeniable that down to
the beginning of this century the greatest common-
law judges held to the notion that the executor's
liability stood on stronger grounds than that of an
ordinary bailee, and this notion is easiest explained
as an echo of a time when he was owner of the
goods, and therefore absolutely accountable for their
value. In the Chancery, the forum of trusts, it is
not surprising to find a m?lder rule laid down at an
earlier date, and no doubt* the doctrine of equity now
has supplanted that of the common law/ 9

There is no dispute, of course, that in some sense
executors and administrators have the property in
the goods of the deceased. 20 I take it as evidence

17 King v. Viscount Hertford, 2 Shower, 172; Coggs V. Bernard,
a Ld. Raym. 909. The Common Law, Lect. 5, esp. p. 19$. Morley v.
Morley, 2 Cas. in Ch. 2.

18 Executors (i4th ed.) 234.

19 Lord Hardwicke in Jones v. Lewis, 2 Ves. Sen. 240, 241 (1751) ;
Job v. Job, 6 Ch. D. 562 ; Stevens v. Gage, 55 N.H. 175. See Morley v.
Morley, 2 Cas. in Ch. 2 (1678).

2 Com, Dig. Administration (B. xo). Cf. Wms, Exors.
cd.) 558.

THE BAR AS A PROFESSION 157

only conception of first-rate importance wMch has
a Roman origin, so far as I know.

Of course I recognize that a man hardly can be
called accomplished in his profession who knows
nothing of Roman law, and more particularly of the
great Germans who have taught it in this century,
but I am speaking of how to learn law for practice.

The study of jurisprudence is a different matter.
When properly taught, jurisprudence means simply
the broadest generalization of the principles and the
deepest analysis of the ideas at the bottom of an
actual system. It is the same process, carried
f urther, by which the law is carried out from particu-
lar cases into general rules. A young man who has
understood John Austin's tedious and often mistaken
book has taken a real step forward, while Sir Henry
Maine makes him feel as if his whole road were
strewn with diamonds.

The means of thoroughly understanding the law
now within every one's reach are very different from
those with which we had to content ourselves when
I was a student. Studied as it may be studied and
as there are now many encouragements to study it,
Burke no longer would fear, I think, that it would
sharpen the mind by narrowing it.

One of the courses to be pursued is the anatomy
of legal ideas worked out by the English school of
jurisprudence; another is the embryology of the
same conceptions to be found in history as the Ger-
mans have taught it to the world.

With regard to the chances of success, I remember

158 COLLECTED LEGAL PAPERS

that the late Lord Justice Bowen once told me, when
he was at the bar and already successful, that he
thought that beside patience and talent a man must
have luck. But, so far as I have noticed, luck gen-
erally comes to patience and talent, if coupled with
love of the thing, as the Lord Chief Justice so truly
adds.

In this country there seems to be as good a chance
to succeed at the bar as in other callings, and I
should not think that much depended on luck for
a man of the right sort. Sometimes, too, the law has
been the starting-point for a business career, and
always it has offered an opening into politics.

For the last quarter of a century a large part of
our best talent has gone into business rather than
into politics, doubtless because it was more needed
there and therefore the rewards were higher. It has
been more important that the country should be de-
veloped than that it should be governed by the great-
est skill. But there can be no doubt that we need
all the ability we can get in our government at the
present time and that we shall want, if we can get
them, trained lawyers as well as economists in our
legislatures.

But here again the situation is different from that
in England; and political life generally means giving
up the law for the time and rather a falling off in
legal capacity, although I should not advise any one
to sleep on that consideration if he should be trying
a case against Senator Hoar.

In one of the most beautiful pieces of English in

THE BAR AS A PROFESSION 259

the world, the essay called The Lantern-Bearers, Mr.
Robert Louis Stevenson shows us how In their hearts
all men are idealists. The only criticism which I
should make upon his adorable essay is that his ex-
amples find their ideals outside their daily pursuits.
George Herbert's

"Who sweeps a room as for Thy laws,
Makes that and th* action fine,"

has an intellectual as well as a moral meaning. If
the world is a subject for rational thought it is all
of one piece; the same laws are found everywhere,
and everything is connected with everything else;
and if this is so, there is nothing mean, and nothing
In which may not be seen the universal law.

The difference between gossip and philosophy lies
only in one's way of taking a fact. The law may
lead to high things those who stay in it as well as
those who pass beyond but not above it to other
forms of command.

i6o COLLECTED LEGAL PAPERS

A REJOINDER

BY THE LORD CHIEF JUSTICE OF ENGLAOT)

I HAVE read the comments on "The Bar as a Pro-
fession/* by Mr. Justice Holmes, with interest and
with some surprise. With much that the learned
judge says I find myself in agreement. On two
main points I find myself differing from him. In the
first place I regard university training as much more
important than the learned judge appears to do.
Robust minds can do much to make good the want of
it, but to make an accomplished lawyer in the sense
in which Chief Justice Marshall, Lord Mansfield
and Sir William Grant, amongst others, answered
that description, I regard university culture as almost
indispensable.

My surprise in the next place arises from the de-
preciatory view which Mr, Justice Holmes seems to
take of the value of the study of Roman law. Under
that head I of course include not only the Corpus
Juris, but also that body of text law, mainly German,
which deals not only with the historical and scientific
side of Roman law, but which, by modernizing it, has
rejected much of the early Roman law now obsolete.

No one can read the judgments of your great
Chief Justice Marshall or the writings of Story or
of Kent without seeing how much, in arrangement
and in breadth of view, they owe to the study of
Roman law.

THE BAR AS A PROFESSION 161

Mr. Justice Holmes speaks truly and with, just
pride of the system of legal education in the United
States, It is in my opinion far superior to that
existing in these islands. Its superiority I think
mainly consists in its systematic teaching of the his-
torical and scientific aspects of law before the actual,
practical, workaday law is dealt with.

To the absence of this system I largely attrib-
ute the facts which I deplore that with but
few exceptions our legal treatises are analyses of
decided cases, our legal arguments at the bar are
a nice discrimination of those cases, and the deliver-
ances from the judges but little more than able efforts
to establish analogies or differences between the case
in hand and reported authority. I think also the
form if not the substance of legislation is injuriously
affected by the same cause.

If this state of things is to be remedied, it can
only be by early training in law, historically and
systematically taught, and I can imagine no such
teaching from which the Roman law can be excluded.
I need hardly say that in any study of comparative
law the Roman system must find a prominent place.

The learned judge speaks of the broader and more
profound generalizations reached in our time. May
I suggest to him that even now, after the lapse of
centuries, the De regulis juris still speaks with a liv-
ing voice? Again, I cannot agree that the main roots
of our law are Prankish they are mainly of native
growth and still less that the "last will" is almost
the only conception of first-rate Importance which

z62 COLLECTED LEGAL PAPERS

originates in the Roman law. But I would prefer
to suggest other authority than my own in favor of
the views I propound.

It happens that I have recently had to read the re-
port known as that of the Gresham Commission
(1894), before which were examined a number of
distinguished men on the subject of the establish-
ment of a legal faculty in connection with a teaching
university in London. Amongst these were Lord
Coleridge, Lord Bowen, Prof. J. Bryce, M, P. ? Lord
Davey, Professor Westlake, and last, but by no
means least, Prof. E. H. Emmott of the Johns Hop-
kins University, Baltimore. Each of these high
authorities was emphatic as to the importance of the
study of Roman law In any high system of legal
training.

In The Bar as a Profession, I have suggested a
high ideal of the accomplished lawyer one who
may make a great advocate, a great judge, a great
writer, or a great legislator, or all of these. I do not
deny that without the liberal equipment which I would
desire, men of ability may make large incomes and
even have distinguished careers at the bar, but I
maintain that their careers would have been still
more distinguished, their marks on their generation
graven still deeper, and their contributions to the
wisdom of the world still weightier, had they pos-
sessed it.

THE BAR AS A PROFESSION 163
A POSTSCRIPT

BY ME. JUSTICE HOLMES

I HAVE read the second article of the Lord Chief
Justice, but I see no reason to change the opinions
which I have expressed. I will only add a few words
of explanation.

I trust that it will be understood that I did not
undervalue the moral or even the intellectual ad-
vantages of a university education, but that I am
speaking of its importance for what I may call a
fighting success.

In saying that the main roots of our law are Frank-
ish I mean to deny the notion, which has been held,
that they are Roman, rather than accurately to dis-
criminate the particular folk-law to which we are
most indebted. I do not think, however, that any
of the most important conceptions of private law are
of native origin in England.

For further expression of my views I should have
to refer to my book on The Common Law and to an
article on "Early English Equity'* in the Law
Quarterly Review. The leading ideas there advanced
appear to me to have been followed in the main by
the latest and most accomplished historians of Eng-
lish law, Sir F. Pollock and Mr. Maitland.

BROWN UNIVERSITY COMMENCE-
MENT 1897*

A UNIVERSITY is a place from which men start
for the Eternal City. In the university are pictured
the ideals which abide in the City of God. Many
roads lead to that haven, and those who are here
have traveled by different paths towards the goal.
I do not know what better the travelers can do at a
gathering like this, where for a moment the univer-
sity becomes conscious of itself and of its meaning,
than to report to those about to start something of
their experiences and to give a hint of what is to
be expected on the way .

My way has been by the ocean of the law. On
that I have learned a part of the great lesson, the
lesson not of law but of life. There were few of
the charts and lights for which one longed when I
began. One found oneself plunged in a thick fog
of details in a black and frozen night, in which
were no flowers, no spring, no easy joys. Voices of
authority warned that in the crush of that ice any
craft might sink. One heard Burke saying that law
sharpens the mind by narrowing it. One heard in
Thackeray of a lawyer bending all the powers of a
great inind to a mean profession. One saw that

* Hitherto imprinted.
164

BROWN UNIVERSITY, 1897 165

artists and poets shrank from it as from an alien

world. One doubted oneself how It could be worthy
of the interest of an intelligent mind. And yet
one said to oneself , law is human it is a part
of man, and of one world with all the rest. There
must be a drift, if one will go prepared and have
patience ? which will bring one out to daylight and
a worthy end. You all have read or heard the
story of Nansen and see the parallel which I use.
Most men of the college-bred type in some form or
other have to go through that experience of sailing
for .the ice and letting themselves be frozen In. In
the first stage one has companions, cold and black
though it be, and if he sticks to it, he finds at last
that there is a drift as was foretold. When he has
found that he has learned the first part of Ms lesson^
that one is safe in trusting to courage and to time.
But he has not yet learned all. So far his trials
have been those of his companions. But if he is a
man of high ambitions he must leave even his fellow-
adventurers and go forth into a deeper solitude and
greater trials. He must start for the pole. In plain
words he must face the loneliness of original work.
No one can cut out new paths in company. He does
that alone.

When he has done that and has turned misgiving
into success he is master of himself and knows the
secret of achievement. He has learned the second
part of his lesson and is ready for the consummation
of the whole. For he has gained another knowledge
more fruitful than success. He knows now what he

166 COLLECTED LEGAL PAPERS

had divined at the outset, that one part of the uni-
verse yields the same teaching as any other if only
it is mastered, that the difference between the great
way of taking things and the small between phil-
osophy and gossip is only the difference between
realizing the part as a part of a whole and looking at
it in its isolation as if it really stood apart. The
consummation to which I referred comes when he
applies this knowledge to himself. He may put it
in the theological form of justification by faith or in
the philosophical one of the continuity of the uni-
verse. I care not very much for the form if in some
way he has learned that he cannot set himself over
against the universe as a rival god, to criticize it, or
to shake his fist at the skies, but that his meaning
is its meaning, his only worth is as a part of it, as a
humble instrument of the universal power. It seems
to me that this is the key to intellectual salvation, as
the key to happiness is to accept a like faith in one's
heart, and to be not merely a necessary but a willing
instrument in working out the inscrutable end.

THE PATH OF THE LAW *

WHEN we study law we are not studying a mystery
but a well-known profession. We are studying what
we shall want in order to appear before judges, or
to advise people in such a way as to keep them out
of court. The reason why it is a profession; why
people will pay lawyers to argue for them or to
advise them, is that in societies like ours the com-
mand of the public force is intrusted to the judges
in certain cases, and the whole power of the state
will be put forth, If necessary, to carry out their
judgments and decrees. People want to know under
what circumstances and how far they will run the
risk of coming against what is so much stronger than
themselves, and hence it becomes a business to find
out when this danger is to be feared. The object
of our study, then, is prediction, the prediction of
the incidence of the public force through the instru-
mentality of the courts.

The means of the study are a body of reports,
of treatises, and of statutes, in this country and in
England, extending back for six hundred years, and
now increasing annually by hundreds. In these

*An Address delivered by Mr. Justice Holmes, of the Supreme
Judicial Court of Massachusetts, at the dedication of the new halt of
the Boston University School of Law, on January 8, 1897. Copy-
righted by O. W. Holmes, 1897. Harvard Law Review, Vol. 2L, 4S7-

167

168 COLLECTED LEGAL PAPERS

sibylline leaves are gathered the scattered prophe-
cies of the past upon the cases in which the axe will
fall. These are what properly have been called the
oracles of the law. Far the most important and
pretty nearly the whole meaning of every new effort
of legal thought is to make these prophecies more
precise, and to generalize them into a thoroughly
connected system. The process is one, from a law-
yer's statement of a case, eliminating as it does all
the dramatic elements with which his client's story
has clothed it, and retaining only the facts of legal
import, up to the final analyses and abstract uni-
versals of theoretic jurisprudence. The reason why
a lawyer does not mention that his client wore a white
hat when he made a contract, while Mrs. Quickly
would be sure to dwell upon it along with the parcel
gilt goblet and the sea-coal fire, is that he foresees
that the public force will act in the same way what-
ever his client had upon his head. It is to make
the prophecies easier to be remembered and to be
understood that the teachings of the decisions of the
past are put into general propositions and gathered
into text-books, or that statutes are passed in a gen-
eral form. The primary rights and duties with which
jurisprudence busies itself again are nothing but
prophecies. One of the many evil effects of the con-
fusion between legal and moral ideas, about which
I shall have something to say in a moment, is that
theory is apt to get the cart before the horse, and
to consider the right or the duty as something exist-
ing apart from and independent of the consequences

THE PATH OF THE LAW 169

of Its breach, to which certain sanctions are added
afterward. But, as I shall try to show, a legal duty
so called is nothing but a prediction that if a man
does or omits certain things he will be made to suffer
in this or that way by judgment of the court; and so
of a legal right.

The number of our predictions when generalized
and reduced to a system is not unmanageably large.
They present themselves as a finite body of dogma
which may be mastered within a reasonable time.
It is a great mistake to be frightened by the ever-
increasing number of reports. The reports of a
given jurisdiction in the course of a generation take
up pretty much the whole body of the law, and
restate it from the present point of view. We could
reconstruct the corpus from them if all that went
before were burned. The use of the earlier reports
is mainly historical, a use about which I shall have
something to say before I have finished.

I wish, if I can, to lay down some first principles
for the study of this body of dogma or systematized
prediction which we call the law, for men who want
to use it as the instrument of their business to enable
them to prophesy in their turn, and, as bearing upon
the study, I wish to point out an ideal which as yet
our law has not attained.

The first thing for a business-like understanding
of the matter is to understand its limits, and there-
fore I think it desirable at once to point out and
dispel a confusion between morality and law, which
sometimes rises to the height of conscious theory,

x 7 o COLLECTED LEGAL PAPERS

and more often and indeed constantly is making
trouble in detail without reaching the point of con-
sciousness. You can see very plainly that a bad
man has as much reason as a good one for wishing
to avoid an encounter with the public force, and
therefore you can see the practical importance of the
distinction between morality and law. A man who
cares nothing for an ethical rule which is believed
and practised by his neighbors is likely nevertheless
to care a good deal to avoid being made to pay
money, and will want to keep out of jail if he can.

I take it for granted that no hearer of mine will
misinterpret what I have to say as the language
of cynicism. The law is the witness and external
deposit of our moral life. Its history is the history
of the moral development of the race. The practice
of it, in spite of popular jests, tends to make good
citizens and good men. When I emphasize the
difference between law and morals I do so with
reference to a single end, that of learning and under-
standing the law. For that purpose you must defi-
nitely master its specific marks, and it is for that I
ask you for the moment to imagine yourselves in-
different to other and greater things.

I do not say that there is not a wider point of
view from which the distinction between law and
morals becomes of secondary or no importance, as
all mathematical distinctions vanish in presence of
the infinite. But I do say that that distinction is of
the first importance for the object which we are
here to consider a right study and mastery of the

THE PATH OF THE LAW 171

law as a business with well understood limits, a body
of dogma enclosed within definite lines. I have just
shown the practical reason for saying so. If you
want to know the law and nothing else, you must
look at it as a bad man, who cares only for the
material consequences which such knowledge enables
him to predict, not as a good one, who finds his
reasons for conduct, whether inside the law or out-
side of it, in the vaguer sanctions of conscience. The
theoretical importance of the distinction is no less,
if you would reason on your subject aright. The
law is full of phraseology drawn from morals, and
by the mere force of language continually invites us
to pass from one domain to the other without per-
ceiving it, as we are sure to do unless we have the
boundary constantly before our minds. The law
talks about rights, and duties, and malice, and intent,
and negligence, and so forth, and nothing is easier,
or, I may say, more common in legal reasoning, than
to take these words in their moral sense, at some
stage of the argument, and so to drop into fallacy.
For instance, when we speak of the rights of man
in a moral sense, we mean to mark the limits of
interference with individual freedom which we think
are prescribed by conscience, or by our ideal, how-
ever reached. Yet it is certain that many laws have
been enforced in the past, and it is likely that some
are enforced now, which are condemned by the most
enlightened opinion of the time, or which at all events
pass the limit of interference as many consciences
would draw it. Manifestly, therefore, nothing but

1 72 COLLECTED LEGAL PAPERS

confusion of thought can result from assuming that
the rights of man in a moral sense are equally rights
in the sense of the Constitution and the law. No
doubt simple and extreme cases can be put of imagin-
able laws which the statute-making power would not
dare to enact, even in the absence of written consti-
tutional prohibitions, because the community would
rise in rebellion and fight; and this gives some plaus-
ibility to the proposition that the law, if not a part
of morality, is limited by it. But this limit of power
is not coextensive with any system of morals. For
the most part it falls far within the lines of any such
system, and in some cases may extend beyond them,
for reasons drawn from the habits of a particular
people at a particular time. I once heard the late
Professor Agassiz say that a German population
would rise if you added two cents to the price of a
glass of beer. A statute in such a case would be
empty words, not because it was wrong, but because
it could not be enforced. No one will deny that
wrong statutes can be and are enforced, and we
should not all agree as to which were the wrong ones.
The confusion with which I am dealing besets con-
fessedly legal conceptions. Take the fundamental
question, What constitutes the law? You will find
some text writers telling you that it is something
different from what is decided by the courts of
Massachusetts or England, that it is a system of
reason, that it is a deduction from principles of
ethics or admitted axioms or what not, which may
or may not coincide with the decisions. But if we

EXECUTORS 149

how hard the early way of thinking died that as late

as 1792, the King's Bench were divided on the ques-
tion whether a sheriff could apply the goods of a

testator in the hands of his executor in execution of
a judgment against the executor in his own right, if
the sheriff was notified after seizure that the goods
were effects of the testator. As might have been

expected the judgment was that the sheriff had not
the right, but Mr. Justice Buller delivered a power-
ful dissent. 21 A little earlier the same court decided
that a sale of the testator's goods in execution of
such a judgment passed the title, and Lord Mans-
field laid it down as clear that an executor might
alien such goods to one who knew them to be assets
for the payment of debts, and that he might alien
them for a debt of his own. He added, "If the
debts had been paid the goods are the property of
the executor." 22

Another singular thing is the form of an execu-
tor's right of retainer. "If an executor has as much
goods in his hands as his own debt amounts to, the
property of those goods is altered and rests in him-
self; that is ? he has them as his own proper goods
in satisfaction of his debt, and not as executor." 2S
This proposition is qualified by Wentworth, so far
as to require an election where the goods are more
than the debt. 24 But the right is clear, and if not

21 Fair ts. Newman, 4 T.R, 621.

** Whale v. Booth, 4 Doug. 36, 46. See i Wms. Exors. (pth ed)
561, note.

2S Woodward t. Lord Darcy, Plowdm, 184, 185.
** Executors (i4th ed.), 77 198* *99*

i S o COLLECTED LEGAL PAPERS

exercised by the executor in his lifetime passes to his
executor. 25 So when an executor or administrator
pays a debt of the deceased with his own money he
may appropriate chattels to the value of the debt. 26
A right to take money would not have seemed
strange, but this right to take chattels at a valuation
in pais without judgment is singular. It may be
a survival of archaic modes of satisfaction when
money was scarce and valuations in the country
common. 27 But it may be a relic of more extensive
title.

The last fact to be considered is the late date
at which equity fully carried out the notion that
executors hold the assets in trust. In 1750, in a
case where one Richard Watkins had died, leaving
his property to his nephew and niece, Lord Hard-
wicke, speaking of a subsequently deceased nephew,
William Watkins, said that he "had no right to any
specific part of the personal estate of Richard what-
ever; only a right to have that personal estate ac-
counted for, and debts and legacies paid out of it,
and so much as should be his share on the whole
account paid to him; which is only a debt, or in the
nature of a chose in action due to the estate of Wil-

25 Hopton v. Dryden, Free. Ch. 179. Wentw. Exors. (i4th ed.)
77, note, citing n Vin. Abr. 261, 263; Croft v. Pyke, 3 P. Wms.
I79 183; Burdet v. Fix, 2 Brownl. 50.

26 Dyer, 20; Elliott v. Kemp. 7 M. & W. 306, 313.

2T See, e.g., the application of the trusteed wool to the judgment in
I Rot. Parl. 1 08. Assignment of dower de la pluis beale, Litt. 49.
Delivery of debtor's chattels by sheriff, St. Westm. n. Ch. 18. Kearns
v. Cunniff, 138 Mass. 434, 436.

EXECUTORS 151

Ham."* 8 In M*Leod v. Drummond 28 Lord Eldon
says that Lord Hardwicke "frequently considered it
as doubtful, whether even in the excepted cases any
one except a creditor, or a specific legatee, could
follow the assets in equity. On the same page,
Hill v. Simpson, 7 Ves. 152 (1802), is said to have
been the first case which gave that right to a general
pecuniary legatee, 30 Hill v. Simpson lays it down
that executors in equity are mere trustees for the
performance of the will/ 1 but it adds that in many
respects and for many purposes third persons are
entitled to consider them absolute owners. Toward
the end of the last century their fiduciary position
began to be insisted on more than had been the case,
and the common-law decisions which have been cited
helped this tendency of the Chancery. 33

The final step was taken in IVFLeod v. Dram-
mond, 88 when Lord Eldon established the rights of
residuary legatees. "It is said in Farr v. Newman
that the residuary legatee is to take the money,
when made up: but I say, he has in a sense a lien
upon the fund, as it is; and may come here for the
specific fund." 3 *

2 Thome v, Watkins, 2 Ves. Sen, 35, 36.

2 I7 yes, 152, 169 (1810).

* See also M'Leod v. Drammond, 14 Ves. 353 3S4-

81 P. 166. Note tbe recurrence with a difference to their original
position in the early Prankish law. I Law Quart. Rev. 164.

a* See also Scott v. Tyler, 2 Dickens, 712, 725, 7*6.

33 I7 Ves. 152, 169.

54 See Marvel v. Babbitt, 143 Mass. 226; Fierce v. Gould, 143 Mass.
2S4> 235; Mechanics' Savings Bank v. Waite, 150 Mass. 234, 235.
I made the decree appealed from in Foster v. Bailer, 157 Mass. 160,

152 COLLECTED LEGAL PAPERS

162. The particular form which it took, allowing the defendant, the
administrator of an administrator, to retain one share of stock and a
savings-bank book as security for what might be found due to his
intestate on the settlement of his account, and directing him to hand
over the rest of the assets, was consented to, in case the defendant
had a right to retain anything. I made the decree on the assumption
that the change in the position of executor and administrator which
I am considering left their rights undisturbed. Of course if the liability
were only to account for a balance, the executor of an executor would
not be bound to hand over anything more, and could not be compelled
to pay anything until the balance was settled. His duty, when estab-
lished, would not be to deliver specific property, but to pay a sum
of money. I do not know what evidence can be found on this point.
It is fair to mention that the plea offered in 30 Ed. I. 240, by executor
of executors, was that, "We held none of the goods of the deceased
on the day when this bill was delivered." But that may be no more
than a general form. "Bonz" probably only meant property.

THE BAR AS A PROFESSION*

THE main thoughts of the fine paper on "The
Bar as a Profession/ 7 by the Lord Chief Justice of
England, in the Companion of February 13, 1896,
are as true for America as for England; but possibly
a few local variations on his theme may have their
use. It is not likely here that anybody will be
prejudiced against business or will take formal views
of the dignity of callings such as a hundred years ago
put the ministry first, law and medicine next, and
below them all other pursuits. The real beliefs of
the world to-day are commercial, and money and the
means of making it are in no danger of being under-
valued.

I should say that one of the good things about
the law is that it does not pursue money directly.
When you sell goods the price which you get and
your own interests are what you think about in the
affair. When you try a case you think about the
ways to win it and the interests of your client. In
the long run this affects one's whole habit of mind,
as anyone will notice if he talks much with men.

In the twenty-five years that I have known English
lawyers it has seemed to me that a scholastic type of
man has more chance of success in England than

* Reprinted from the Youths Companion for
153

j S 4 COLLECTED LEGAL PAPERS

here, where the men at the top are usually hard
fighters. At all events, scholarliness as a social ac-
complishment is more important there than here, and
this would lead me to lay somewhat less weight upon
a university training than is done by the Lord Chief
Justice.

I will not go so far as a jesting friend of mine once
did and say that the main use of a university educa-
tion is to learn the humbug of it. I think it very
useful and very important to a man as a man. But
In this country I do not think it quite so important
to a lawyer as a lawyer.

A certain amount of education a man must have
who constantly is using books. It will save him
trouble if he understands an occasional scrap of Latin
when he comes across it. But a man may sweep
juries before him, command the attention of judges,
counsel sagely in great affairs, or be a leader in any
senate of the country with nothing of the scholarly
about him.

I say this not to make light of the good of going
to college, but by way of encouragement to those
who doubt whether their inability to go there does
not take away hope of success in the law. I have
had letters from young men beset with the doubt,
and always have told them that it is no ground for
despair.

If a man misses a university education it may be
made up to him in part by the way we study law in
this country; for that also is different from the
English way. I think all the lawyers I know here-

THE BAR AS A PROFESSION 155

abouts would agree that the place for a young man
to study law is a law school, not a lawyer's office.

We have a great many law schools In the United
States in which a great many able and more or less
distinguished men are teachers. I will mention that
at Cambridge, not by way of invidious comparison,
but as that which I know best. If a young man can
afford to study there for two, or even three years, he
will not regret a month of it when he comes to
practice.

After the law school spend six months in a good
office, to see how things are done, and also perhaps
to get a little of the usual law student's conceit
rubbed off, and then begin. Practice, in Massachu-
setts at least, is very easily understood.

What needs time is not to learn the routine of
clerk's offices or what a writ looks like, but to master
profoundly and in detail the great body of the law.
This is done far better in a law school in the midst
of a catching enthusiasm than it can be in the listless
solitude of an office, and the companionship and intel-
lectual excitement which are found in the school take
the place to many of the experience which they
missed at an earlier stage.

In a law school the lines of study are marked out,
of course, and the student will not be likely to find
much time for the Roman law. If he studies that,
it will be in his months of waiting for clients. But
in spite of the very great authority by which the
study of it is recommended, I never have been able
to believe that it has the value so often supposed.

i S 6 COLLECTED LEGAL PAPERS

A system of law at any time is the resultant of
present needs and present notions of what is wise
and right on the one hand, and, on the other, of
rules handed down from earlier states of society and
embodying needs and notions which more or less have
passed away.

To get to the bottom of any system, therefore, a
good deal of history has to be studied, and this is
true of the law under which we live now. But our
law has reached broader and more profound general-
izations than the Roman law, and at the same time
far surpasses It in the detail with which it has been
worked out.

One who is master of our own will master any
civilized body of law with ease. But while he is
engaged in mastering one, I doubt the wisdom of
adding to his difficulties by the attempt to learn an-
other system which is even more in need than ours
of historical explanation at every step, a large part
of which is obsolete, and a part of which is hard to
understand even in the best modern books. I cannot
help suspecting that the advantages attributed to
his study of it by the Lord Chief Justice were
due to Sir Henry Maine more than to the Roman
law.

The main roots of our law are Frankish, not
Roman, and many ideas which formerly were sup-
posed, and in the common books still are supposed,
to have come from Rome are now traced to the Lex
SaMca and the folk-law which left its mark in the
Germama of Tacitus. The last will is almost the

THE PATH OF THE LAW 173

take the view of our friend the bad man we shall find
that he does not care two straws for the axioms or
deductions, but that he does want to know what the
Massachusetts or English courts are likely to do in
fact. I am much of his mind. The prophecies of
what the courts will do in fact, and nothing more
pretentious, are what I mean by the law.

Take again a notion which as popularly under-
stood is the widest conception which the law con-
tains the notion of legal duty, to which already
I have referred. We fill the word with all the con-
tent which we draw from morals. But what does
it mean to a bad man? Mainly, and in the first
place, a prophecy that if he does certain things he
will be subjected to disagreeable consequences by
way of imprisonment or compulsory payment of
money. But from his point of view, what is the
difference between being fined and being taxed a
certain sum for doing a certain thing? That his
point of view is the test of legal principles is shown
by the many discussions which have arisen in the
courts on the very quesetion whether a given statu-
tory liability is a penalty or a tax. On the answer
to this question depends the decision whether conduct
is legally wrong or right, and also whether a man
is under compulsion or free. Leaving the criminal
law on one side, what is the difference between the
liability under the mill acts or statutes authorizing
a taking by eminent domain and the liability for
what we call a wrongful conversion of property
where restoration is out of the question. In both

174 COLLECTED LEGAL PAPERS

cases the party taking another man's property has
to pay Its fair value as assessed by a jury, and no
more. What significance is there in calling one
taking right and another wrong from the point of
view of the law? It does not matter, so far as the
given consequence, the compulsory payment, is con-
cerned, whether the act to which it is attached is
described in terms of praise or in terms of blame, or
whether the law purports to prohibit it or to allow
it. If it matters at all, still speaking from the bad
man's point of view, it must be because in one case
and not in the other some further disadvantages, or
at least some further consequences, are attached to
the act by the law. The only other disadvantages
thus attached to it which I ever have been able to
think of are to be found in two somewhat insignifi-
cant legal doctrines, both of which might be abolished
without disturbance. One is, that a contract to do
a prohibited act is unlawful, and the other, that, if
one of two or more joint wrongdoers has to pay
all the damages, he cannot recover contribution from
his fellows. And that I believe is all. You see how
the vague circumference of the notion of duty shrinks
and at the same time grows more precise when we
wash it with cynical acid and expel everything except
the object of our study, the operations of the law.

Nowhere is the confusion between legal and moral
ideas more manifest than in the law of contract.
Among other things, here again the so called primary
rights and duties are invested with a mystic signifi-
cance beyond what can be assigned and explained.

THE PATH OF THE LAW 175

The duty to keep a contract at common law means a
prediction that you must pay damages if you do not
keep it and nothing else. If you commit a tort,
you are liable to pay a compensatory sum. If you
commit a contract, you are liable to pay a compensa-
tory sum unless the promised event comes to pass, and
that is all the difference. But such a mode of looking
at the matter stinks in the nostrils of those who think
it advantageous to get as much ethics into the law
as they can. It was good enough for Lord Coke,
however, and here, as in many other cases, I am
content to abide with him. In Bromage v. Genning?
a prohibition was sought in the King's Bench against
a suit in the marches of Wales for the specific per-
formance of a covenant to grant a lease, and Coke
said that it would subvert the intention of the cove-
nantor, since he intends it to be at his election either
to lose the damages or to make the lease. Sergeant
Harris for the plaintiff confessed that he moved
the matter against his conscience, and a prohibition
was granted. This goes further than we should go
now, but it shows what I venture to say has been
the common law point of view from the beginning,
although Mr. Haniman, in his very able little book
upon Contracts has been inMed, as I humbly think,
to a different conclusion.

I have spoken only of the common law, because
there are some cases in which a logical justification
can be found for speaking of avfl liabilities as Im-
posing duties in an ineligible sense. These are

iRoll. Rep. 368.

1 7 6 COLLECTED LEGAL PAPERS

the relatively few in which equity will grant an
injunction, and will enforce it by putting the defend-
ant in prison or otherwise punishing him unless he
complies with the order of the court. But I hardly
think it advisable to shape general theory from the
exception, and I think it would be better to cease
troubling ourselves about primary rights and sanc-
tions altogether, than to describe our prophecies con-
cerning the liabilities commonly imposed by the law
in those inappropriate terms.

I mentioned, as other examples of the use by the
law of words drawn from morals, malice, intent, and
negligence. It is enough to take malice as it is used
in the law of civil liability for wrongs what we
lawyers call the law of torts to show that it means
something different in law from what it means in
morals, and also to show how the difference has been
obscured by giving to principles which have little or
nothing to do with each other the same name. Three
hundred years ago a parson preached a sermon and
told a story out of Fox's Book of Martyrs of a man
who had assisted at the torture of one of the saints,
and afterward died, suffering compensatory inward
torment. It happened that Fox was wrong. The
man was alive and chanced to hear the sermon, and
thereupon he sued the parson. Chief Justice Wray
instructed the jury that the defendant was not liable,
because the story was told innocently, without malice.
He took malice in the moral sense, as importing a
malevolent motive. But nowadays no one doubts
that a man may be liable, without any malevolent

THE PATH OF THE LAW 177

motive at all, for false statements manifestly cal-
culated to inflict temporal damage. In stating the
case in pleading, we still should call the defendant's
conduct malicious; but, in my opinion at least, the
word means nothing about motives, or even about
the defendant's attitude toward the future, but only
signifies that the tendency of his conduct under the
known circumstances was very plainly to cause the
plaintiff temporal harm. 2

In the law of contract the use of moral phrase*
ology has led to equal confusion, as I have shown
in part already, but only in part. Morals deal with
the actual internal state of the individual's mind,
what he actually intends. From the time of the
Romans down to now, this mode of dealing has
affected the language of the law as to contract, and
the language used has reacted upon the thought. We
talk about a contract as a meeting of the minds
of the parties, and thence it is inferred in various
cases that there is no contract because their minds
have not met; that is, because they have intended
different things or because one party has not known
of the assent of the other. Yet nothing is more
certain than that parties may be bound by a contract
to things which neither of them intended, and when
one does not know of the other's assent. Suppose
a contract is executed in due form and in writing
to deliver a lecture, mentioning no time. One of
the parties thinks that the promise will be construed
to mean at once, within a week. The other thinks

2 See Hanson t*. Globe Newspaper Co., 159 Mass. 293, 302.

1 78 COLLECTED LEGAL PAPERS

that it means when he is ready. The court says
that it means within a reasonable time. The parties
are bound by the contract as it is interpreted by
the court, yet neither of them meant what the court
declares that they have said. In my opinion no one
will understand the true theory of contract or be
able even to discuss some fundamental questions
intelligently until he has understood that all con-
tracts are formal, that the making of a contract
depends not on the agreement of two minds in one
intention, but on the agreement of two sets of ex-
ternal signs not on the parties 3 having meant the
same thing but on their having said the same thing.
Furthermore, as the signs may be addressed to one
sense or another to sight or to hearing on the
nature of the sign will depend the moment when the
contract is made. If the sign is tangible, for in-
stance, a letter, the contract is made when the letter
of acceptance is delivered. If it is necessary that
the minds of the parties meet, there will be no con-
tract until the acceptance can be read none, for
example, if the acceptance be snatched from the
hand of the offerer by a third person.

This is not the time to work out a theory in de-
tail, or to answer many obvious doubts and questions
which are suggested by these general views. I know
of none which are not easy to answer, but what I
am trying to do now is only by a series of hints to
throw some light on the narrow path of legal doc-
trine, and upon two pitfalls which, as it seems to
me, lie perilously near to it. Of the first of these

THE PATH OF THE LAW 179

I have said enough. I hope that my illustrations
have shown the danger, both to speculation and to
practice, of confounding morality with law, and the
trap which legal language lays for us on that side
of our way. For my own part, I often doubt
whether it would not be a gain if every word of moral
significance could be banished from the law al-
together, and other words adopted which should con*
vey legal ideas uncolored by anything outside the
law. We should lose the fossil records of a good
deal of history and the majesty got from ethical
associations, but by ridding ourselves of an unneces-
sary confusion we should gain very much in the
clearness of our thought.

So much for the limits of the law. The next thing
which I wish to consider is what are the forces which
determine its content and its growth. You may as-
sume, with Hobbes and Bentham and Austin, that
all law emanates from the sovereign, even when the
first human beings to enunciate it are the judges,
or you may think that law is the voice of the Zeit-
geist, or what you like. It is all one to my present
purpose. Even if every decision required the sanc-
tion of an emperor with despotic power and a whim-
sical turn of mind, we should be interested none the
less, still with a view to prediction, in discovering some
order, some rational explanation, and some principle
of growth for the rules which he laid down. In every
system there are such explanations and principles to
be found. It is with regard to them that a second
fallacy comes in, which I think it important to
expose.

i8o COLLECTED LEGAL PAPERS

The fallacy to which I refer is the notion that
the only force at work in the development of the
law is logic. In the broadest sense, indeed, that
notion would be true. The postulate on which we
think about the universe is that there is a fixed
quantitative relation between every phenomenon and
its antecedents and consequents. If there is such
a thing as a phenomenon without these fixed quanti-
tative relations, it is a miracle. It is outside the law
of cause and effect, and as such transcends our power
of thought, or at least is something to or from which
we cannot reason. The condition of our thinking
about the universe is that it is capable of being
thought about rationally, or, in other words, that
every part of it is effect and cause in the same sense
in which those parts are with which we are most
familiar. So in the broadest sense it is true that
the law is a logical development, like everything else.
The danger of which I speak is not the admission
that the principles governing other phenomena also
govern the law, but the notion that a given system,
ours, for instance, can be worked out like mathe-
matics from some general axioms of conduct. This
is the natural error of the schools, but it is not con-
fined to them. I once heard a very eminent judge
say that he never let a decision go until he was
absolutely sure that it was right. So judicial dis-
sent often is blamed, as if it meant simply that one
side or the other were not doing their sums right,
and, if they would take more trouble, agreement
inevitably would come.

THE PATH OF THE LAW 181

This mode of thinking is entirely natural. The
training of lawyers is a training in logic. The proc-
esses of analogy, discrimination, and deduction are
those in which they are most at home. The lan-
guage of judicial decision is mainly the language of
logic. And the logical method and form flatter that
longing for certainty and for repose which is in
every human mind. But certainty generally is illu-
sion, and repose is not the destiny of man. Behind
the logical form lies a judgment as to the relative
worth and importance of competing legislative
grounds, often an inarticulate and unconscious judg-
ment, it is true, and yet the very root and nerve of
the whole proceeding. You can give any conclusion
a logical form. You always can imply a condition in
a contract. But why do you imply it? It is be-
cause of some belief as to the practice of the commu-
nity or of a class, or because of some opinion as to
policy, or, in short, because of some attitude of yours
upon a matter not capable of exact quantitative
measurement, and therefore not capable of founding
exact logical conclusions. Such matters really are
battle grounds where the means do not exist for
determinations that shall be good for all time, and
where the decision can do no more than embody
the preference of a given body in a given time and
place. We do not realize how large a part of our
law is open to reconsideration upon a slight change
in the habit of the public mind. No concrete propo-
sition is self evident, no matter how ready we may
be to accept it, not even Mr. Herbert Spencer's

182 COLLECTED LEGAL PAPERS

"Every man has a right to do what he wills, pro-
vided he interferes not with a like right on the part
of his neighbors."

Why is a false and injurious statement privileged,
if it is made honestly in giving information about a
servant. It is because it has been thought more
important that information should be given freely,
than that a man should be protected from what under
other circumstances would be an actionable wrong.
Why is a man at liberty to set up a business which
he knows will ruin his neighbor? It is because the
public good is supposed to be best subserved by free
competition. Obviously such judgments of relative
importance may vary in different times and places.
Why does a judge instruct a jury that an employer
is not liable to an employee for an injury received
in the course of his employment unless he is negli-
gent, and why do the jury generally find for the
plaintiff if the case is allowed to go to them? It is
because the traditional policy of our law is to confine
liability to cases where a prudent man might have
foreseen the injury, or at least the danger, while the
inclination of a very large part of the community
is to make certain classes of persons insure the safety
of those with whom they deal. Since the last words
were written, I have seen the requirement of such
insurance put forth as part of the programme of one
of the best known labor organizations. There is
a concealed, half conscious battle on the question
of legislative policy, and if any one thinks that it
can be settled deductively, or once for all, I only

THE PATH OF THE LAW 183

can say that I think he is theoretically wrong ; and
that I am certain that his conclusion will not be ac-
cepted in practice semper ubique et ab omnibus.

Indeed, I tMnk that even now our theory upon
this matter is open to reconsideration, although I
am not prepared to say how I should decide if a
reconsideration were proposed. Our law of torts
comes from the old days of isolated, ungeneralized
wrongs, assaults, slanders, and the like, where the
damages might be taken to lie where they fell by
legal judgment. But the torts with which our courts
are kept busy to-day are mainly the incidents of
certain well known businesses. They are injuries
to person or property by railroads, factories, and the
like. The liability for them is estimated ? and sooner
or later goes into the price paid by the public. The
public really pays the damages, and the question of
liability, if pressed far enough, is really the question
how far it is desirable that the public should insure
the safety of those whose work it uses. It might
be said that in such cases the chance of a jury find-
ing for the defendant is merely a chance, once in a
while rather arbitrarily interrupting the regular
course of recovery, most likely in the case of an un-
usually conscientious plaintiff, and therefore better
done away with. On the other hand, the economic
value even of a life to the community can be esti-
mated, and no recovery, it may be said, ought to
go beyond that amount. It is conceivable that some
day in certain cases we may find ourselves imitating,

184 COLLECTED LEGAL PAPERS

on a higher plane, the tariff for life and limb which
we see in the Leges Barbarorum.

I think that the judges themselves have failed
adequately to recognize their duty of weighing con-
siderations of social advantage. The duty is inevit-
able, and the result of the often proclaimed judicial
aversion to deal with such considerations is simply to
leave the very ground and foundation of judgments
inarticulate, and often unconscious, as I have said.
When socialism first began to be talked about, the
comfortable classes of the community were a good
deal frightened. I suspect that this fear has influ-
enced judicial action both here and in England, yet
it is certain that it is not a conscious factor in the
decisions to which I refer. I think that something
similar has led people who no longer hope to control
the legislatures to look to the courts as expounders
of the Constitutions, and that in some courts new
principles have been discovered outside the bodies
of those instruments, which may be generalized into
acceptance of the economic doctrines which prevailed
about fifty years ago, and a wholesale prohibition of
what a tribunal of lawyers does not think about
right. I cannot but believe that if the training of
lawyers led them habitually to consider more defi-
nitely and explicitly the social advantage on which
the rule they lay down must be justified, they some-
times would hesitate where now they are confident,
and see that really they were taking sides upon de-
batable and often burning questions.

So much for the fallacy of logical form. Now let

THE PATH OF THE LAW 185

us consider the present condition of the law as a
subject for study, and the ideal toward which it tends.
We still are far from the point of view which I desire
to see reached. No one has reached it or can reach
it as yet. We are only at the beginning of a phil-
osophical reaction, and of a reconsideration of the
worth of doctrines which for the most part still are
taken for granted without any deliberate, conscious,
and systematic questioning of their grounds. The
development of our law has gone on for nearly a
thousand years, like the development of a plant,
each generation taking the inevitable next step, mind,
like matter, simply obeying a law of spontaneous
growth. It is perfectly natural and right that it
should have been so. Imitation is a necessity of
human nature, as has been illustrated by a remark-
able French writer, M. Tarde, in an admirable book,
Les Lois de limitation. Most of the things we do, we
do for no better reason than that our fathers have
done them or that our neighbors do them, and the
same is true of a larger part than we suspect of what
we think. The reason is a good one, because our
short life gives us no time for a better, but it is not
the best. It does not follow, because we all are
compelled to take on faith at second hand most of
the rules on which we base our action and our
thought, that each of us may not try to set some
corner of his world in the order of reason, or that
all of us collectively should not aspire to carry reason
as far as it will go throughout the whole domain. In
regard to the law, it is true, no doubt, that an evo-

z86 COLLECTED LEGAL PAPERS

lutionist will hesitate to affirm universal validity
for his social ideals, or for the principles which he
thinks should be embodied in legislation. He is con-
tent if he can prove them best for here and now. He
may be ready to admit that he knows nothing about
an absolute best in the cosmos, and even that he
knows next to nothing about a permanent best for
men. Still it is true that a body of law is more
rational and more civilized when every rule it con-
tains is referred articulately and definitely to an end
which it subserves, and when the grounds for desir-
ing that end are stated or are ready to be stated in
words.

At present, in very many cases, if we want to know
why a rule of law has taken its particular shape,
and more or less if we want to know why it exists
at all, we go to tradition. We follow it into the
Year Books, and perhaps beyond them to the cus-
toms of the Salian Franks, and somewhere in the
past, in the German forests, in the needs of Norman
kings, in the assumptions of a dominant class, in
the absence of generalized ideas, we find out the
practical motive for what now best is justified by
the mere fact of its acceptance and that men are
accustomed to it. The rational study of law is still
to a large extent the study of history. History must
be a part of the study, because without it we cannot
know the precise scope of rules which it is our busi-
ness to know. It is a part of the rational study,
because it is the first step toward an enlightened
scepticism, that is, towards a deliberate reconsidera-

THE PATH OF THE LAW 187

tion of the worth of those rules. When you get the
dragon out of his cave on to the plain and in the
daylight, you can count his teeth and daws, and
see just what is his strength. But to get him out
is only the first step. The next is either to Mil him,
or to tame him and make him a usef qj animal For
the rational study of the law the black-letter man
may be the man of the present, but the man of the
future is the man of statistics and the master of
economics. It is revolting to have no better reason
for a rule of law than that so it was laid down in
the time of Henry IV. It is still more revolting
if the grounds upon which it was laid down have
vanished long since, and the rule simply persists from
blind imitation of the past. I am thinking of the
technical rule as to trespass ab initio, as it is called,
which I attempted to explain in a recent Massa-
chusetts case. 3

Let me take an illustration, which can be stated
in a few words, to show how the social end which
is aimed at by a rule of law is obscured and only
partially attained in consequence of the fact that
the rule owes its form to a gradual historical develop-
ment, instead of being reshaped as a whole, with
conscious articulate reference to the end in view.
We think it desirable to prevent one man's property
being misappropriated by another, and so we make
larceny a crime. The evil is the same whether the
misappropriation is made by a man into whose hands
the owner has put the property, or by one who wrong-

3 Commonwealth V. Rubin, 165 Mass. 453.

188 COLLECTED LEGAL PAPERS

fully takes it away. But primitive law in its weak-
ness did not get much beyond an effort to prevent
violence, and very naturally made a wrongful taking,
a trespass, part of its definition of the crime. In
modern times the judges enlarged the definition a
little by holding that, if the wrong-doer gets posses-
sion by a trick or device, the crime is committed.
This really was giving up the requirement of a tres-
pass, and it would have been more logical, as well as
truer to the present object of the law, to abandon
the requirement altogether. That, however, would
have seemed too bold, and was left to statute.
Statutes were passed making embezzlement a crime.
But the force of tradition caused the crime of em-
bezzlement to be regarded as so far distinct from
larceny that to this day, in some jurisdictions at
least, a slip corner is kept open for thieves to con-
tend, if indicted for larceny, that they should have
been indicted for embezzlement, and if indicted for
embezzlement, that they should have been indicted
for larceny, and to escape on that ground.

Far more fundamental questions still await a bet-
ter answer than that we do as our fathers have done.
What have we better than a blind guess to show
that the criminal law in its present form does more
good than harm? I do not stop to refer to the effect
which it has had in degrading prisoners and in plung-
ing them further into crime, or to the question
whether fine and imprisonment do not fall more
heavily on a criminaFs wife and children than on
himself. I have in mind more far-reaching ques-

THE PATH OF THE LAW 189

tions. Does punishment deter? Do we deal with
criminals on proper principles? A modern school of
Continental criminalists plumes itself on the formula,
first suggested, it is said, by Gall, that we must con-
sider the criminal rather than the crime. The
formula does not carry us very far, but the inquiries
which have been started look toward an answer of
my questions based on science for the first time. If
the typical criminal is a degenerate, bound to swindle
or to murder by as deep seated an organic necessity
as that which makes the rattlesnake bite, it is idle
to talk of deterring him by the classical method of
imprisonment. He must be got rid of; he cannot
be improved, or frightened out of his structural re-
action. If, on the other hand, crime, like normal
human conduct, is mainly a matter of imitation,
punishment fairly may be expected to help to keep
it out of fashion. The study of criminals has been
thought by some well known men of science to sus-
tain the former hypothesis. The statistics of the
relative increase of crime in crowded places like large
cities, where example has the greatest chance to work,
and in less populated parts, where the contagion
spreads more slowly, have been used with great force
in favor of the latter view. But there is weighty
authority for the belief that, however this may be,
"not the nature of the crime, but the dangerousness
of the criminal, constitutes the only reasonable legal
criterion to guide the inevitable social reaction against
the criminal." *

* Havelock EIKs, The Criminal, 41, citing Garofalo. See also Fern,
Socwlogie Crmxnette, p&ssim. Compare Tarde* La PkUasopkie Ptnale.

xgo COLLECTED LEGAL PAPERS

The impediments to rational generalization, which
I illustrated from the law of larceny, are shown in
the other branches of the law, as well as in that of
crime. Take the law of tort or civil liability for
damages apart from contract and the like. Is there
any general theory of such liability, or are the cases
in which it exists simply to be enumerated, and to
be explained each on its special ground, as is easy to
believe from the fact that the right of action for
certain well known classes of wrongs like trespass
or slander has its special history for each class? I
think that there is a general theory to be discovered,
although resting in tendency rather than established
and accepted. I think that the law regards the inflic-
tion of temporal damage by a responsible person
as actionable, if under the circumstances known to
him the danger of his act is manifest according to
common experience, or according to his own experi-
ence if it is more than common, except in cases where
upon special grounds of policy the law refuses to pro-
tect the plaintiff or grants a privilege to the defend-
ant. 5 I think that commonly malice, intent, and
negligence mean only that the danger was manifest
to a greater or less degree, under the circumstances
known to the actor, although in some cases of privi-
lege malice may mean an actual malevolent motive,

5 An example of the law's refusing to protect the plaintiff is when
he is interrupted by a stranger in the use of a valuable way, which
he has travelled adversely for a week less than the period of prescrip-
tion. A week later he will have gained a right, but now he is only
a trespasser. Example of privilege I have given already. One of the
best is competition in business.

THE PATH OF THE LAW 191

and such a motive may take away a permission know-
ingly to inflict harm, which otherwise would be
granted on this or that ground of dominant public
good. But when I stated my view to a very emi-
nent English judge the other day, he said: "You are
discussing what the law ought to be; as the law is,
you must show a right. A man is not liable for
negligence unless he is subject to a duty." If our
difference was more than a difference in words, or
with regard to the proportion between the exceptions
and the rule, then, in his opinion, liability for an
act cannot be referred to the manifest tendency of
the act to cause temporal damage in general as a
sufficient explanation, but must be referred to the
special nature of the damage, or must be derived
from some special circumstances outside of the ten-
dency of the act, for which no generalized explana-
tion exists. I think that such a view is wrong, but
it is familiar, and I dare say generally is accepted in
England.

Everywhere the basis of principle is tradition, to
such an extent that we even are in danger of making
the role of history more important than it is. The
other day Professor Ames wrote a learned artide
to show, among other things, that the common law
did not recognize the defence of fraud in actions
upon specialties, and the moral might seem to be
that the personal character of that defence is due
to its equitable origin. But if, as I have said, all
contracts are formal, the difference is not merely
historical, but theoretic, between defects of form

192 COLLECTED LEGAL PAPERS

which prevent a contract from being made, and mis-
taken motives which manifestly could not be con-
sidered in any system that we should call rational
except against one who was privy to those motives.
It is not confined to specialties, but is of universal
application. I ought to add that I do not suppose
that Mr. Ames would disagree with what I suggest.

However, if we consider the law of contract, we
find it full of history. The distinctions between
debt, covenant, and assumpsit are merely historical.
The classification of certain obligations to pay money,
imposed by the law irrespective of any bargain as
quasi contracts, is merely historical. The doctrine
of consideration is merely historical. The effect
given to a seal is to be explained by history alone.
Consideration is a mere form. Is it a useful form?
If so, why should it not be required in all contracts?
A seal is a mere form, and is vanishing in the scroll
and in enactments that a consideration must be given,
seal or no seal. Why should any merely historical
distinction be allowed to affect the rights and obli-
gations of business men?

Since I wrote this discourse I have come on a
very good example of the way in which tradition
not only overrides rational policy, but overrides it
after first having been misunderstood and having
been given a new and broader scope than it had
when it had a meaning. It is the settled law of
England that a material alteration of a written con-
tract by a party avoids it as against him. The doc-
trine is contrary to the general tendency of the law.

THE PATH OF THE LAW 193

We do not tell a jury that if a man ever has lied
in one particular he is to be presumed to lie in all.
Even if a man has tried to defraud, it seems no suffi-
cient reason for preventing him from proving the
truth. Objections of like nature in general go to the
weight, not to the admissibility, of evidence. More-
over, this rule is irrespective of fraud, and is not con-
fined to evidence. It is not merely that you cannot
use the writing, but that the contract is at an end.
What does this mean? The existence of a written
contract depends on the fact that the offerer and
offeree have interchanged their written expressions,
not on the continued existence of those expressions.
But in the case of a bond, the primitive notion was
different. The contract was inseparable from the
parchment. If a stranger destroyed it, or tore off
the seal, or altered it, the obligee could not recover,
however free from fault, because the defendant's
contract, that is, the actual tangible bond which he
had sealed, could not be produced in the form in
which it bound him. About a hundred years ago
Lord Kenyon undertook to use his reason on this
tradition, as he sometimes did to the detriment of
the law, and, not understanding it, said he could
see no reason why what was true of a bond should
not be true of other contracts. His decision hap-
pened to be right, as it concerned a promissory note,
where again the common law regarded the contract
as inseparable from the paper on which it was writ-
ten, but the reasoning was general, and soon was
extended to other written contracts, and various ab-

194 COLLECTED LEGAL PAPERS

surd and unreal grounds of policy were invented to
account for the enlarged rule.

I trust that no one will understand me to be speak-
ing with disrespect of the law, because I criticise it
so freely. I venerate the law, and especially our
system of law, as one of the vastest products of
the human mind. No one knows better than I do
the countless number of great intellects that have
spent themselves in making some addition or im-
provement, the greatest of which is trifling when com-
pared with the mighty whole. It has the final title
to respect that it exists, that it is not a Hegelian
dream, but a part of the lives of men. But one may
criticise even what one reveres. Law is the business
to which my life is devoted, and I should show less
than devotion if I did not do what in me lies to im-
prove it, and, when I perceive what seems to me the
ideal of its future, if I hesitated to point it out and
to press toward it with all my heart.

Perhaps I have said enough to show the part which
the study of history necessarily plays in the intelli-
gent study of the law as it is to-day. In the teach-
ing of this school and at Cambridge it is in no danger
of being undervalued. Mr. Bigelow here and Mr.
Ames and Mr. Thayer there have made important
contributions which will not be forgotten, and in
England the recent history of early English law by
Sir Frederick Pollock and Mr, Maitland has lent the
subject an almost deceptive charm. We must be-
ware of the pitfall of antiquarianism, and must re-
member that for our purposes our only interest in

THE PATH OF THE LAW 195

the past is for the light it throws upon the present.
I look forward to a time when the part played by
history in the explanation of dogma shall be very
small, and instead of ingenious research we shall
spend our energy on a study of the ends sought to
be attained and the reasons for desiring them. As
a step toward that ideal it seems to me that every
lawyer ought to seek an understanding of economics.
The present divorce between the schools of political
economy and law seems to me an evidence of how
much progress in philosophical study still remains
to be made. In the present state of political
economy, indeed, we come again upon history on a
larger scale, but there we are called on to consider
and weigh the ends of legislation, the means of attain-
ing them, and the cost. We learn that for every-
thing we have we give up something else, and we are
taught to set the advantage we gain against the other
advantage we lose, and to know what we are doing
when we elect.

There is another study which sometimes is under-
valued by the practical minded, for which I wish to
say a good word, although I think a good deal of
pretty poor stuff goes under that name. I mean the
study of what is called jurisprudence. Jurisprudence,
as I look at it, is simply law in its most generalized
part. Every effort to reduce a case to a rule is an
effort of jurisprudence, although the name as used
in English is confined to the broadest rules and mmt
fundamental conceptions. One mark of a great law-
yer is that he sees the application of the broadest

196 COLLECTED LEGAL PAPERS

rules. There is a story of a Vermont justice of the
peace before whom a suit was brought by one farmer
against another for breaking a churn. The justice
took time to consider, and then said that he had
looked through the statutes and could find nothing
about churns, and gave judgment for the defendant.
The same state of mind is shown in all our common
digests and text-books. Applications of rudimentary
rules of contract or tort are tucked away under the
head of Railroads or Telegraphs or go to swell
treatises on historical subdivisions, such as Shipping
or Equity, or are gathered under an arbitrary title
which is thought likely to appeal to the practical
mind, such as Mercantile Law. If a man goes into
law it pays to be a master of it, and to be a master
of it means to look straight through all the dramatic
incidents and to discern the true basis for prophecy.
Therefore, it is well to have an accurate notion of
what you mean by law, by a right, by a duty, by
malice, intent, and negligence, by ownership, by pos-
session, and so forth, I have in my mind cases in
which the highest courts seem to me to have floun-
dered because they had no clear ideas on some of
these themes. I have illustrated their importance
already. If a further illustration is wished, it may
be found by reading the Appendix to Sir James
Stephen's Criminal Law on the subject of possession,
and then turning to Pollock and Wright's enlight-
ened book. Sir James Stephen is not the only writer
whose attempts to analyze legal ideas have been con-
fused by striving for a useless quintessence of all sys-

THE PATH OF THE LAW 197

terns, Instead of an accurate anatomy of one. The
trouble with Austin was that he did not know enough
English law. But still it is a practical advantage to
master Austin, and his predecessors, Hobbes and
Bentham, and his worthy successors, Holland and
Pollock. Sir Frederick Pollock's recent little book
is touched with the felicity which marks all his works,
and is wholly free from the perverting influence of
Roman models.

The advice of the elders to young men is very
apt to be as unreal as a list of the hundred best
books. At least in my day I had my share of such
counsels, and high among the unrealities I place the
recommendation to study the Roman law. I assume
that such advice means more than collecting a few
Latin maxims with which to ornament the discourse

the purpose for which Lord Coke recommended

Bracton. If that is all that is wanted, the title De
Regulis Juris Antiqui can be read in an hour. I as-
sume that, if it is well to study the Roman Law, it is
well to study it as a working system. That means
mastering a set of technicalities more difficult and
less understood than our own, and studying another
course of history by which even more than our own
the Roman law must be explained. If any one
doubts me, let Mm read Keller's Der Romische
Civil Process und die Actionen, a treatise on the
praetor's edict, Muirhead's most interesting His-
torical Introduction to the Private Law of Rome,
and, to give him the best chance, Sohm's admirable
Institutes. No. The way to gain a liberal view of

198 COLLECTED LEGAL PAPERS

your subject is not to read something else, but to
get to the bottom of the subject itself. The means
of doing that are, in the first place, to follow the
existing body of dogma into its highest generaliza-
tions by the help of jurisprudence; next, to discover
from history how it has come to be what it is; and,
finally, so far as you can, to consider the ends
which the several rules seek to accomplish, the rea-
sons why those ends are desired, what is given up to
gain them, and whether they are worth the price.

We have too little theory in the law rather than
too much, especially on this final branch of study.
When I was speaking of history, I mentioned larceny
as an example to show how the law suffered from not
having embodied in a dear form a rule which will
accomplish its manifest purpose. In that case the
trouble was due to the survival of forms coming
from a time when a more limited purpose was enter-
tained. Let me now give an example to show the
practical importance, for the decision of actual cases,
of understanding the reasons of the law, by taking
an example from rules which, so far as I know, never
have been explained or theorized about in any ade-
quate way. I refer to statutes of limitation and the
law of prescription. The end of such rules is obvi-
ous, but what is the justification for depriving a man
of his rights, a pure evil as far as it goes, in conse-
quence of the lapse of time? Sometimes the loss
of evidence is referred to, but that is a secondary
matter. Sometimes the desirability of peace, but
why is peace more desirable after twenty years than

THE PATH OF THE LAW 199

before? It is Increasingly likely to come without
the aid of legislation. Sometimes it is said that, if
a man neglects to enforce his rights, he cannot com-
plain if, after a while, the law follows his example.
Now if this is all that can be said about it, you
probably will decide a case I am going to put, for
the plaintiff; if you take the view which I shall sug-
gest, you possibly will decide it for the defendant.
A man is sued for trespass upon land, and justifies
under a right of way. He proves that he has used
the way openly and adversely for twenty years, but
it turns out that the plaintiff had granted a license
to a person whom he reasonably supposed to be the
defendant's agent, although not so in fact, and there-
fore had assumed that the use of the way was per-
missive, in which case no right would be gained.
Has the defendant gained a right or not? If his
gaining it stands on the fault and neglect of the
landowner in the ordinary sense, as seems commonly
to be supposed, there has been no such neglect, and
the right of way has not been acquired. But if I
were the defendant's counsel, I should suggest that
the foundation of the acquisition of rights by lapse
of time is to be looked for in the position of the per-
son who gains them, not in that of the loser. Sir
Henry Maine has made it fashionable to connect the
archaic notion of property with prescription. But
the connection is further back than the first recorded
Mstory. It is in the nature of man's mind. A thing
which you have enjoyed and used as your own for a
long time, whether property or an opinion, takes

200 COLLECTED LEGAL PAPERS

root In your being and cannot be torn away without
your resenting the act and trying to defend yourself,
however you came by it. The law can ask no better
justification than the deepest instincts of man. It
is only by way of reply to the suggestion that you
are disappointing the former owner, that you refer
to his neglect having allowed the gradual dissociation
between himself and what he daims, and the gradual
association of it with another. If he knows that
another is doing acts which on their face show that
he is on the way toward establishing such an associa-
tion, I should argue that in justice to that other he
was bound at his peril to find out whether the other
was acting under his permission, to see that he was
warned, and if necessary, stopped.

I have been speaking about the study of the law,
and I have said next to nothing of what commonly
is talked about in that connection text-books and
the case system, and all the machinery with which
a student comes most immediately in contact. Nor
shall I say anything about them. Theory is my sub-
ject, not practical details. The modes of teaching
have been improved since my time, no doubt, but
ability and industry will master the raw material
with any mode. Theory is the most important part
of the dogma of the law, as the architect is the most
important man who takes part in the building of a
house. The most important improvements of the
last twenty-five years are improvements in theory.
It is not to be feared as unpractical, for, to the compe-
tent, it simply means going to the bottom of the

THE PATH OF THE LAW 201

subject. For the Incompetent, It sometimes is true,
as has been said, that an interest in general ideas
means an absence of particular knowledge. I re-
member in army days reading of a youth who, being
examined for the lowest grade and being asked a
question about squadron drill, answered that he never
had considered the evolutions of less than ten thou-
sand men. But the weak and foolish must be left to
their folly. The danger is that the able and practical
minded should look with indifference or distrust upon
ideas the connection of which with their business is
remote. I heard a story, the other day, of a man
who had a valet to whom he paid high wages, sub-
ject to deduction for faults. One of his deductions
was, "For lack of imagination, ive dollars/' The
lack is not confined to valets. The object of ambi-
tion, power, generally presents itself nowadays in
the form of money alone. Money is the most im-
mediate form, and is a proper object of desire. "The
fortune," said Rachel, "is the measure of the intelli-
gence." That is a good text to waken people out
of a fooFs paradise. But, as Hegel says, 6 "It is in
the end not the appetite, but the opinion, which has
to be satisfied." To an imagination of any scope
the most far-reaching form of power is not money,
it is the command of ideas. If you want great ex-
amples, read Mr. Leslie Stephen's History of English
Thought in the Eighteenth Centwy, and see how a
hundred years after his death the abstract specula-
tions of Descartes had become a practical force o>a-

BiiL iks Redifs, f 190,

202. COLLECTED LEGAL PAPERS

trolling the conduct of men. Read the works of the
great German jurists, and see how much more the
world is governed to-day by Kant than by Bonaparte.
We cannot all be Descartes or Kant, but we all want
happiness. And happiness, I am sure from having
known many successful men, cannot be won simply
by being counsel for great corporations and having
an income of fifty thousand dollars. An intellect
great enough to win the prize needs other food be-
sides success. The remoter and more general aspects
of the law are those which give it universal interest.
It is through them that you not only become a great
master in your calling, but connect your subject with
the universe and catch an echo of the infinite, a
glimpse of its unfathomable process, a hint of the
universal law.

THE THEORY OF LEGAL INTERPRETATION*

THE paper upon the "Principles of Legal Interpre-
tation/' by Mr. F. Vaughan Hawkins^ reprinted in
Professor Thayer's recently published and excellent
Preliminary Treatise on Evtdence y induces me to
suggest what seems to me the theory of our rules
of interpretation a theory which I think supports
Lord Wensleydale and the others whom Mr. Haw-
kins quotes and disapproves, If I correctly understand
their meaning and his.

It is true that in theory any document purporting
to be serious and to have some legal effect has one
meaning and no other, because the known object is
to achieve some definite result. It is not true that
in practice (and I know no reason why theory should
disagree with the facts) a given word or even a given
collocation of words has one meaning and no other.
A word generally has several meanings^ even in the
dictionary. You have to consider the sentence in
which it stands to decide which of those meanings
it bears in the particular case, and very likely will
see that it there has a shade of significance more
refined than any given in the word-book. But in
this first step, at least, you are not troubling yourself

* Saroard Ltm Rewi&m, VoL XDL 417 (1899).
203

204 COLLECTED LEGAL PAPERS

about the Idiosyncrasies of the writer, you are con-
sidering simply the general usages of speech. So
when you let whatever galvanic current may come
from the rest of the instrument run through the par-
ticular sentence, you still are doing the same thing.
How is it when you admit evidence of circumstances
and read the document in the light of them? Is this
trying to discover the particular intent of the individ-
ual, to get into his mind and to bend what he said
to what he wanted? No one would contend that
such a process should be carried very far, but, as
It seems to me, we do not take a step in that direc-
tion. It is not a question of tact in drawing a line.
We are after a different thing. What happens is
this. Even the whole document is found to have
a certain play in the joints when its words are
translated into things by parol evidence, as they have
to be. It does not disclose one meaning conclusively
according to the laws of language. Thereupon we
ask, not what this man meant, but what those words
would mean in the mouth of a normal speaker of Eng-
lish, using them in the circumstances in which they
were used, and it is to the end of answering this last
question that we let in evidence as to what the cir-
cumstances were. But the normal speaker of Eng-
lish is merely a special variety, a literary form, so
to speak, of our old friend the prudent man. He
is external to the particular writer, and a reference
to him as the criterion is simply another instance of
the externality of the law.
But then it is said, and this is thought to be the

THEORY OF LEGAL INTERPRETATION 205

crux: In the case of a gift of Blackacre to John Smith,
when the donor owned two Blackacres and the direc-
tory reveals two John Smiths, you may give direct
evidence of the donor's intention and it is only aa
anomaly that you cannot give the same evidence in
every case. I think, on the contrary, that the excep-
tional rule is a proof of tie instinctive insight of the
judges who established it. I refer again to the
theory of our language. By the theory of our lan-
guage, while other words may mean different things,
a proper name means one person or thing and no
other. If language perfectly performed its function,
as Bentham wanted to make it, it would point out the
person or thing in every case. But under our random
system it sometimes happens that your name is
Idem sonans with mine, and it may be the same even
in spelling. But it never means you or me indiffer-
ently. In theory of speech your name means you
and my name means me, and the two names are
different. They are different words. Licet idem sit
nomen, tamen diversum est propter diversitatem
personae? In such a case we let in evidence of
intention not to help out what theory recognizes as
an uncertainty of speech, and to read what the writer
meant into what he has tried but failed to say, but,
recognizing that he has spoken with theoretic cer-
tainty, we inquire what he meant in order to find
out what he has said. It is on this ground that
there is no contract when the proper name used by
one party means one sMp, and that used by the other

* Bract

206 COLLECTED LEGAL PAPERS

means another. 2 The mere difference of Intent as
such is immaterial. In the use of common names
and words a plea of different meaning from that
adopted by the court would be bad, but here the
parties have said different things and never have ex-
pressed a contract. If the donor, instead of saying
"Blackacre," had said "my gold watch" and had
owned more than one, inasmuch as the words, though
singular, purport to describe any such watch belong-
ing to the speaker, I suppose that no evidence of
intention would be admitted. But I dare say that
evidence of circumstances sufficient to show that
the normal speaker of English would have meant
a particular watch by the same words would be
let in.

I have stated what I suppose to be our general
theory of construction. It remains to say a few
words to justify it. Of course, the purpose of writ-
ten instruments is to express some intention or state
of mind of those who write them, and it is desirable
to make that purpose effectual, so far as may be, if
instruments are to be used. The question is how
far the law ought to go in aid of the writers. In the
case of contracts, to begin with them, it is obvious
that they express the wishes not of one person but
of two, and those two adversaries. If it turns out
that one meant one thing and the other another,
speaking generally, the only choice possible for the

* Raffles v. Wlchefliatis, 2 H. & C. 906. See Mead v. Phemx
Insurance Co., 158 Mass. 124; Hanson v. Globe Newspaper Co., 159
Mass. 293, 305.

THEORY OF LEGAL INTERPRETATION 207

legislator is either to hold both parties to the judge's
interpretation of the words in the sense which I have
explained, or to allow the contract to be avoided
because there has been no meeting of minds. The
latter course not only would greatly enhance the
difficulty of enforcing contracts against losing parties,
but would run against a plain principle of justice.
For each party to a contract has notice that the other
will understand his words according to the usage of
the normal speaker of English under the circum-
stances, and therefore cannot complain if his words
are taken in that sense. 8

Different rules conceivably might be laid down for
the construction of different kinds of writing. In the
case of a statute, to turn from contracts to the
opposite extreme, it would be possible to say that as
we are dealing with the commands of the sovereign
the only thing to do is to find out what the sovereign
wants. If supreme power resided in the person of a
despot who would cut off your hand or your head
if you went wrong, probably one would take every
available means to find out what was wanted. Yet
in fact we do not deal differently with a statute from
our way of dealing with a contract. We do not
inquire what the legislature meant; we ask only what
the statute means. In this country, at least, for
constitutional reasons, if for no other, if the same
legislature that passed it should declare at a later

* In Na^i 9. Maiiiesota Tile BasaratiGe and Trust Company, 165
Mass. 574, I thought that this principle should be carried further than
the majority of the court were willing to go.

208 COLLECTED LEGAL PAPERS

date a statute to have a meaning which in the opinion
of the court the words did not bear, I suppose that
the declaratory act would have no effect upon inter-
vening transactions unless in a place and case where
retrospective legislation was allowed. As retrospec-
tive legislation it would not work by way of construc-
tion except in form.

So in the case of a will. It is true that the test-
ator is a despot, within limits, over his property, but
he is required by statute to express his commands in
writing, and that means that his words must be
sufficient for the purpose when taken in the sense in
which they would be used by the normal speaker of
English under his circumstances.

I may add that I think we should carry the external
principle of construction even further than I have
indicated. I do not suppose that you could prove,
for purposes of construction as distinguished from
avoidance, an oral declaration or even an agreement
that words in a dispositive instrument making sense
as they stand should have a different meaning from
the common one; for instance, that the parties to a
contract orally agreed that when they wrote five hun-
dred feet it should mean one hundred inches, or at
Bunker Hill Monument should signify Old South
Church. 4 On the other hand, when you have the
security of a local or class custom or habit of speech,
it may be presumed that the writer conforms to the
usage of his place or dass when that is what a normal
person in his situation would do. But these cases

* Goode v. Itifey, 153 Mass. s&S, 586.

THEORY OF LEGAL INTERPRETATION 209

are remote from the point of theory upon which I
started to speak.

It may be, after all, that the matter is one in which
the important thing, the law, is settled, and different
people will account for it by such theory as pleases
them best, as in the ancient controversy whether the
finder of a thing which had been thrown away by the
owner got a title in privity by gift, or a new title by
abandonment. That he got a title no one denied.
But although practical men generally prefer to leave
their major premises inarticulate, yet even for prac-
tical purposes theory generally turns out the most
important thing in the end. I am far from saying
that it might not make a difference in the old question
to which I have referred.

LAW IN SCIENCE AND SCIENCE IN LAW *

THE law of fashion is a law of life. The crest
of the wave of human interest is always moving,
and it is enough to know that the depth was greatest
in respect of a certain feature or style in literature
or music or painting a hundred years ago to be sure
that at that point it no longer is so profound. I
should draw the conclusion that artists and poets,
instead of troubling themselves about the eternal, had
better be satisfied if they can stir the feelings of a
generation, but that is not my theme. It is more to
my point to mention that what I have said about art
is true within the limits of the possible in matters
of the intellect. What do we mean when we talk
about explaining a thing? A hundred years ago
men explained any part of the universe by showing
its fitness for certain ends, and demonstrating what
they conceived to be its final cause according to a
providential scheme. In our less theological and
more scientific day, we explain an object by tracing
the order and process of its growth and development
from a starting point assumed as given.

TMs process of historical explanation has been

* An Address delivered by Mr. Justice Holmes before the New
York State Bar Association on January 17, 1899. Harvard Law
'Review, Vol. XIL, 443.

LAW IN SCIENCE SCIENCE IN LAW 211

applied to the matter of our profession, especially
of recent years, with great success, and with so much
eagerness, and with such a feeling that when you had
the true historic dogma you had the last word not
only in the present but for the immediate future,
that I have felt warranted heretofore in throwing out
the caution that continuity with the past is only a
necessity and not a duty. As soon as a legislature
is able to imagine abolishing the requirement of a
consideration for a simple contract, it is at perfect
liberty to abolish it, if it thinks it wise to do so,
without the slightest regard to continuity with the
past. That continuity simply limits the possibilities
of our imagination, and settles the terms in which
we shall be compelled to think.

Historical explanation has two directions or as-
pects, one practical and the other abstractly scientific*
I by no means share that morality which finds in a
remoter practice the justification of philosophy and
science. I do not believe that we must justify our
pursuits by the motive of social well-being. If we
have satisfied ourselves that our pursuits are good for
society, or at least not bad for it, I think that
science, like art, may be pursued for the pleasure of
the pursuit and of its fruits, as an end in itself.
I somewhat sympathize with the Cambridge mathe-
matician's praise of his theorem, "The best of it al
is that it can never by any possibility be made of the
slightest use to anybody for anything." I think it
one of the glories of man that he does not sow seed,
and weave doth, and produce all the other economic

2i2 COLLECTED LEGAL PAPERS

means simply to sustain and multiply other sowers
and weavers that they in their turn may multiply,
and so ad infinitum, but that on the contrary he
devotes a certain part of his economic means to
uneconomic ends ends, too, which he finds in him-
self and not elsewhere. After the production of
food and cloth has gone on a certain time, he stops
producing and goes to the play, or he paints a picture,
or asks unanswerable questions about the universe,
and thus delightfully consumes a part of the world's
food and clothing, while he idles away the only hours
that fully account for themselves.

Thinking in this way, you readily will understand
that I do not consider the student of the history of
legal doctrine bound to have a practical end in view.
It is perfectly proper to regard and study the law
simply as a great anthropological document. It is
proper to resort to it to discover what ideals of so-
ciety have been strong enough to reach that final
form of expression, or what have been the changes
in dominant ideals from century to century. It is
proper to study it as an exercise in the morphology
and transformation of human ideas. The study pur-
sued for such ends becomes science in the strictest
sense. Who could fail to be interested in the transi-
tion through the priest's test of truth, 1 the miracle
of the ordeal, and the soldier's, the battle of the duel,
to the democratic verdict of the jury! Perhaps I
might add, in view of the great increase of jury-
waived cases, a later transition yet to the commer-

1 1 do not foiget tiat tlic drardi afooished the ordeal.

LAW IN SCIENCE SCIENCE IN LAW 21$

cial and rational test of the judgment of a man
trained to decide.

It is still only the minority who recognize how the
change of emphasis which I have called the law of
fashion has prevailed even in the realm of morals.
The other day I was looking over Bradford's his-
tory the book which Mr. Bayard brought as a
gift from Lambeth to the Massachusetts State House
and I was struck to see recounted the execution
of a man with horrible solemnities for an offence
which still, to be sure, stands on the statute book as
a serious crime, but which no longer is often heard
of in court, which many would regard as best pun-
ished simply by the disgust of normal men, and which
a few think of only as a physiological aberration, of
interest mainly to the pathologist. I found in the
same volume the ministers consulted as the find ex-
pounders of the law, and learnedly demonstrating
that what now we should consider as needing no other
repression than a doctor's advice ? was a crime punish-
able with death and to be ferreted out by searching
the conscience of the accused, although after dis-
cussion it was thought that torture should be reserved
for state occasions.

To take a less odious as well as less violent con-
trast, when we read in the old books that it is the
duty of one exercising a common calling to do his
work upon demand and to do it with reasonable skill,
we see that the gentleman is in the saddle and means
to have the common people kept up to the mark for
his convenience. We recognise the imperative tone

214 COLLECTED LEGAL PAPERS

which in our day has changed sides, and is of tener
to be heard from the hotel clerk than from the guest.
I spoke of the scientific study of the morphology
and transformation of human ideas in the law, and
perhaps the notion did not strike all of you as famil-
iar. I am not aware that the study ever has been
systematically pursued, but I have given some ex-
amples as I have come upon them in my work, and
perhaps I may mention some now by way of illustra-
tion, which, so far as I know, have not been followed
out by other writers. In the Lex Salica 2 the law
of the Salian Franks you find going back to the
fifth century a very mysterious person, later 3 named
the salmannus the sale-man a third person who
was called in to aid in completing the transfer of
property in certain cases. The donor handed to him
a symbolic staff which he in due season handed over
in solemn form to the donee. If we may trust M.
Dareste, and take our information at second hand,
a copious source of error, it would look as if a similar
use of a third person was known to the Egyptians
and other early peoples. But what is certain is that
we see the same form used down to modern times
in England for the transfer of copyhold. I dare say
that many of you were puzzled, as I was when I was
a law student, at the strange handing over of a staff
to the lord or steward of the manor as a first step
toward conveying copyhold land to somebody else.
It really is nothing but a survival of the old form

Merkd, db. 46.

* AD. 1108, Besder, 263, n.

LAW IN SCIENCE SCIENCE IN LAW 215

of the Salic law, as M. Vinogradoff at last has noticed,
in his work on Villainage in England. There you
have the Salic device in its original shape. But it
is the transformations which it has undergone to
which I wish to call your attention. The surrender
to the steward is expressed to be to the use of the
purchaser or donee. Now, although Mr. Kenelm
Digby in his History of the Law of Real Property
warns us that this has nothing to do with the doctrine
of uses, I venture to think that, helped by the work
of learned Germans as to the development of the
saleman on the continent, I have shown heretofore
that the saleman became in England the better known
feoffee to uses, and thus that the connection between
him and the steward of the manor when he receives
the surrender of a copyhold is clear. But the execu-
tor originally was nothing but a feoffee to uses. The
heir was the man who paid his ancestor's debts and
took his property. The executor did not step into
the heir's shoes, and come fully to represent the per-
son of the testator as to personal property and lia-
bilities until after Bracton wrote his great treatise
on the Laws of England. Surely a flower is not more
unlike a leaf, or a segment of a skull more unlike
a vertebra, than the executor as we know him is
remote from his prototype, the saleman of the Salic
law. I confess that such a development as that fills
me with interest, not only for itself, but as an illus-
tration of what you see all through the law the
paucity of original ideas in man, and the slow, coast-
ing way in which he works along from rudimentary

2x6 COLLECTED LEGAL PAPERS

beginnings to the complex and artificial conceptions
of civilized life. It is like the niggardly uninventive-
ness of nature in its other manifestations^ with its
few smells or colors or types, its short list of ele-
ments, working along In the same slow way from
compound to compound until the dramatic impres-
siveness of the most intricate compositions, which we
call organic life, makes them seem different in kind
from the elements out of which they are made, when
set opposite to them in direct contrast.

In a book which I printed a good many years ago
I tried to establish another example of the develop-
ment and transformation of ideas. The early law
embodied hatred for any immediate source of hurt,
which comes from the association of ideas and im-
perfect analysis, in the form of proceedings against
animals and inanimate objects, and of the noxae
deditio by which the owner of the offending thing
surrendered it and was free from any further lia-
bility, I tried to show that from this primitive
source came, in part at least, our modern responsi-
bility of an owner for his animals and of a master
for his servants acting within the scope of their em-
ployment, the limited liability of shipowners tinder
the law which allows them to surrender their vessel
and free themselves, and that curious law of deodand,
under which a steam engine was declared forfeited by
the Court of Exchequer in 1842.* I shall have to
suggest later that it played a part also in the develop-
ment of contract,

* Regina v. Eastern Counties Railway Company, 10 K. & W. 59.

LAW IN SCIENCE SCIENCE IN LAW 217

Examples like these lead us beyond the trans-
formations of an idea to the broader field of the
development of our more general legal conceptions.
We have evolution in this sphere of conscious thought
and action no less than in lower organic stages, but
an evolution which must be studied in its own field.
I venture to think that the study is not yet finished.
Take for instance the origin of contract. A single
view has prevailed with slight modifications since
Sohm published Das Recht der Eheschliessung in
1875. But fashion is potent in science as well as
elsewhere, and it does not follow because Sohin
smashed his predecessor that there may not arise
a later champion who will make some impact upon
him. Sohm, following a thought first suggested, I
believe, by Savigny, and made familiar by Maine in
his Ancient Law, sees the beginning of contract in
an interrupted sale. This is expressed in later law
by our common law debt, founded upon a quid pro
quo received by the debtor from the creditor. Out
of this, by a process differently conceived by different
writers, arises the formal contract, the fides facta of
the Salic law, the covenant familiar to us. And this
dichotomy exhausts the matter. I do not say that
this may not be proved to be the final and correct
account, but there are some considerations which I
should like to suggest in a summary way. We are
not bound to assume with Sohm that his Prankish
ancestors had a theory in their heads which, even if
a trifle inarticulate, was the majestic peer of all that
was done at Rome. The result of that assumption

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is to lead to the further one, tacitly made, but felt
to be there, that there must have been some theory
of contract from the beginning, if only you can find
what it was. It seems to me well to remember that
men begin with no theory at all, and with no such
generalization as contract. They begin with par-
ticular cases, and even when they have generalized
they are often a long way from the final generaliza-
tions of a later time. Down into this century con-
sideration was described by enumeration, as you may
see in Tidd's Practice, or Blackstone, 5 and only of
late years has it been reduced to the universal ex-
pression of detriment to the promises. So, bailment
was bailment and nothing further until modern
times. It was not contract. And so warranty was
warranty, a duty imposed by law upon the vendor,
and nothing more. 6 A trust still is only a trust,
although according to the orthodox it creates merely
a personal obligation.

Well, I have called attention elsewhere to the
fact that giving hostages may be followed back to
the beginning of our legal history, as far back as
sales, that is, and that out of the hostage grew the
surety, quite independently of the development of
debt or formal contract. If the obligation of the
surety, who, by a paradox explained by his origin,
appears often in early law without a principal con-
tractor, as the only party bound, had furnished the

9 1 Tidd, Ch. i.; 2 BL Comm. 444, 445.

Glanv. X, C 16; Bracton, 151; i L5nmg, Vertragsbmch, 14,
p. 105 ; d Sohm, last Rom. Law, 46, n, n. 7.

LAW IN SCIENCE SCIENCE IN LAW 219

analogy for other undertakings, we never should have
had the doctrine of consideration. If other under-
takings were to be governed by the analogy of the
law developed out of sales, sureties must either have
received a quid pro quo or have made a covenant.
There was a clash between the competing ideas, and
just as commerce was prevailing over war the chil-
dren of the sale drove the child of the hostage from
the field. In the time of Edward III. it was decided
that a surety was not bound without a covenant,
except in certain cities where local custom maintained
the ancient law. Warranty of land came to re-
quire, and thus to be, a covenant in the same way,
although the warranty of title upon a sale of chattels
still retains its old characteristics, except that it now
is thought of as a contract. 7

But the hostage was not the only competitor for
domination. The oath also goes back as far as the
history of our race. 8 It started from a different
point, and, leaving the possible difference of sanc-
tion on one side, it might have been made to cover
the whole field of promises. The breach of their
promissory oath by witnesses still is punished as
perjury, and formerly there were severe penalties
for the jury if convicted of a similar offence by
attaint. 9 The solemnity was used for many other
purposes, and, if the church had had its way, the

7 Y. B. 13 & 14 Ed. m, so.

8 Caesar, B. G., IV, u; Ammianus MarceDinus, XVII, i, 13,
furantes conceptis ritu patrio verbis.

9 Bracton, 22b.

220 COLLECTED LEGAL PAPERS

oath, helped by its cousin the plighting of troth,
would have been very likely to succeed. In the
time of Henry III., faith, oath, and writing, that
is, the covenant, were the popular familiar forms of
promise. The plighting of a man's faith or troth,
still known to us in the marriage ceremony, was in
common use, and the courts of the church claimed
jurisdiction over it as well as over the oath. I have
called attention elsewhere to a hint of inclination
on the part of the early clerical chancellors to con-
tinue the clerical jurisdiction in another court, and
to enforce the ancient form of obligation. Professor
Ames has controverted my suggestion, but I cannot
but think it of significance that down to later times
we still find the ecclesiastical tribunals punishing
breach of faith or of promissory oaths with spiritual
penalties. When we know that a certain form of
undertaking was in general use, and that it was en-
forced by the clergy in their own courts, a very little
evidence is enough to make us believe that in a new
court, also presided over by a clergyman and with
no substantive law of its own, the idea of enforcing
it well might have been entertained, especially in
view of the restrictions which the civil power put
upon the church. But oath and plighting of troth
did not survive in the secular forum except as an
occasional solemnity, and I have mentioned them
only to show a lively example of the struggle for
life among competing ideas, and of the ultimate vic-
tory and survival of the strongest. After victory
the law of covenant and debt went on, and consoli-

LAW IN SCIENCE SCIENCE IN LAW 221

dated and developed their empire in a way that is
familiar to you all, until they in their turn lost some-
thing of their power and prestige in consequence of
the rise of a new rival, Assumpsit

There were other seeds which dropped by the way-
side in early law, and which were germs of relations
that might now be termed contractual, such as the
blood covenant, by which people bound themselves
together or made themselves of one substance by
drinking the blood or eating the flesh of a newly
killed animal. Such was the fiction of family rela-
tionship, by which, for instance, the Aedui symbol-
ized their alliance with the Romans, 10 I may notice
in this connection that I suspect that the mundium
or early German guardianship was the origin of our
modern bail, while, as I have said, the surety came
from a different source. I mention these only to
bring still closer home the struggle for existence be-
tween competing ideas and forms to which I have
referred. In some instances the vanquished com-
petitor has perished. In some it has put on the
livery of its conqueror, and has become in form and
external appearance merely a case of covenant or
assumpsit.

Another important matter is the way in which
the various obligations were made binding after they
were recognized. A breach of oath of course brought
with it the displeasure of the gods. In other cases,
as might be expected, we find hints that liabilities
of a more primitive sort were extended to the new

1 Strabo, IV., 32.

222 COLLECTED LEGAL PAPERS

candidates for legal recognition. In the Roman law
a failure to pay the price of a purchase seems to
have suggested the analogy of theft. All over the
world slavery for debt is found, and this seems not
to have stood on the purely practical considerations
which first would occur to us, but upon a notion akin
to the noxal surrender of the offending body for a
tort. There is a mass of evidence that various early
contracts in the systems of law from which our own
is descended carried with them the notion of pledg-
ing the person of the contracting party a notion
which we see in its extreme form in the seizure or
division of the dead body of the debtor, 11 and which
seems to come out in the maxim Debita inhaerent
ossibus debitoris.

I am not going to trace the development of every
branch of our law in succession, but if we turn to the
law of torts we find there, perhaps even more notice-
ably than in the law of contracts, another evolution-
ary process which Mr. Herbert Spencer has made
familiar to us by the name of Integration. The
first stage of torts embraces little if anything beyond
those simple acts of violence where the appeals of
death, of wounding or maiming, of arson and the
like had taken the place of self-help, to be succeeded
by the modification known as the action of trespass.
But when the action on the case let libel and slander
and all the other wrongs which are known to the

II g eej e ^ Three Metrical Romances, Camden Soc. 1842, introd.
p, xxvi, and cantos XII and XXH; Boccaccio, Bonn's tr., p. 444 n.,
referring to an old English ballad.

LAW IN SCIENCE SCIENCE IN LAW 223

modern law Into the civil courts, for centuries each
of the recognized torts had its special history, its
own precedents, and no one dreamed, so far as I
know, that the different cases of liability were, or
ought to be, governed by the same principles through-
out. As is said in the preface to Mr. Jaggard's
book, "the use of a book on Torts, as a distinct
subject, was a few years ago a matter of ridicule."
You may see the change which has taken place by
comparing Hilliard on Torts, which proceeds by
enumeration in successive chapters through assault
and battery, libel and slander, nuisance, trespass,
conversion, etc., with Sir Frederick Pollock's Intro-
duction, in which he says that the purpose of his
book "is to show that there really is a Law of Torts,
not merely a number of rules of law about various
kinds of torts that this is a true living branch
of the Common Law, not a collection of heteroge-
neous instances." It would be bold, perhaps, to
say that the integration was complete, that it did
not rest partly in tendency. The recent much dis-
cussed case of Allen v. Flood, in the House of Lords,
seems to me to indicate that, in the view of the
older generation even of able and learned men, the
foundation of liability still is somewhat in the air,
and that tradition and enumeration are the best
guides to this day. But I have no doubt that the
generalizing principle will prevail, as generalization
so often prevails, even in advance of evidence, be-
cause of the ease of mind and comfort which it brings.
Any one who thinks about the world as I do does

224 COLLECTED LEGAL PAPERS

not need proof that the scientific study of any part
of it has an interest which is the same in kind as
that of any other part. If the examples which I
have given fail to make the interest plain, there is
no use in my adding to them, and so I shall pass to
another part of my subject. But first let me add
a word. The man of science in the law is not merely
a bookworm. To a microscopic eye for detail he
must unite an insight which tells him what details
are significant. Not every maker of exact investi-
gation counts, but only he who directs his investiga-
tion to a crucial point. But I doubt if there is any
more exalted form of life than that of a great ab-
stract thinker, wrapt in the successful study of prob-
lems to which he devotes himself, for an end which is
neither unselfish nor selfish in the common sense
of those words, but is simply to feed the deepest
hunger and to use the greatest gifts of his soul.

But after all the place for a man who is complete
in all his powers is in the fight. The professor,
the man of letters, gives up one-half of life that his
protected talent may grow and flower in peace. But
to make up your mind at your peril upon a living
question, for purposes of action, calls upon your
whole nature. I trust that I have shown that I
appreciate what I thus far have spoken of as if it
were the only form of the scientific study of law, but
of course I think, as other people do, that the main
ends of the subject are practical, and from a practical
point of view, history, with which I have been dealing
thus far, is only a means, and one of the least of

LAW IN SCIENCE SCIENCE IN LAW 225

the means, of mastering a tool. From a practical
point of view, aS I have illustrated upon another
occasion, its use is mainly negative and skeptical.
It may help us to know the true limit of a doctrine,
but its chief good is to burst inflated explanations.
Every one instinctively recognizes that in these days
the justification of a law for us cannot be found in
the fact that our fathers always have followed it.
It must be found in some help which the law brings
toward reaching a social end which the governing
power of the community has made up its mind that
it wants. And when a lawyer sees a rule of law in
force he is very apt to invent, if he does not find,
some ground of policy for its base. But in fact some
rules are mere survivals. Many might as well be
different, and history is the means by which we
measure the power which the past has had to govern
the present in spite of ourselves, so to speak, by im-
posing traditions which no longer meet their original
end. History sets us free and enables us to make
up our minds dispassionately whether the survival
which we are enforcing answers any new purpose
when it has ceased to answer the old. Notwithstand-
ing the contrasts which I have been making, the prac-
tical study of the law ought also to be scientific.
The true science of the law does not consist mainly
in a theological working out of dogma or a logical
development as in mathematics, or only in a study
of it as an anthropological document from the out-
side; an even more important part consists in the
establishment of its postulates from within upon

226 COLLECTED LEGAL PAPERS

accurately measured social desires instead of tradi-
tion. It is this latter part to which I now am turn-
ing, and I begin with one or two instances of the
help of history in clearing away rubbish instances
of detail from my own experience.

Last autumn our court had to consider the grounds
upon which evidence of fresh complaint by a rav-
ished woman is admitted as part of the government's
case in an indictment for rape. All agree that it is
an exception to the ordinary rules of evidence to
allow a witness to be corroborated by proof that he
has said the same thing elsewhere when not under
oath, except possibly by way of rebuttal under ex-
traordinary circumstances. But there is the excep-
tion, almost as well settled as the rule, and courts and
lawyers finding the law to be established proceed to
account for it by consulting their wits. We are told
that the outrage is so great that there is a natural
presumption that a virtuous woman would disclose
it at the first suitable opportunity. I confess that
I should think this was about the last crime in which
such a presumption could be made, and that it was
far more likely that a man who had had his pocket
picked or who had been the victim of an attempt to
murder would speak of it, than that a sensitive
woman would disclose such a horror. If we look
into history no further than Hale's Pleas of the
Crown, where we find the doctrine, we get the real
reason and the simple truth. In an appeal of rape
the first step was for the woman to raise hue and
cry. Lord Hale, after stating that fact, goes on to

LAW IN SCIENCE SCIENCE IN LAW 227

say that upon an indictment for the same offence
the woman can testify, and that her testimony will
be corroborated if she made fresh complaint and
pursued the offender. That is the hue and cry over
again. At that time there were few rules of evi-
dence. Later our laws of evidence were systema-
tized and developed. But the authority of Lord
Hale has caused his dictum to survive as law in the
particular case, while the principle upon which it
would have to be justified has been destroyed. The
exception in other words is a pure survival, having
nothing or very little to back it except that the prac-
tice is established. 12

In a somewhat earlier case 13 I tried to show that
the doctrine of trespass ab initio in like manner was
the survival in a particular class of cases of a primi-
tive rule of evidence, which established intent by
a presumption of law from subsequent conduct, after
the rule had gone to pieces and had been forgotten
as a whole. Since that decision Professor Ames has
made some suggestions which may or may not modify
or enlarge the view which I took, but which equally
leave the doctrine a survival, the reasons for which
long have disappeared.

In Brower v. Fisher, 14 the defendant, a deaf and
dumb person, had conveyed to the plaintiff real and
personal property, and had got a judgment against
the plaintiff for the price. The plaintiff brought a

12 Commonwealth t?. Geary, 172 Mass. 172.
18 Commonwealth v. Rubin, 165 Mass. 453.
i* 4 Johns. Ch. 441.

228 COLLECTED LEGAL PAPERS

bill to find out whether the conveyance was legal,
and got an injunction pendente lite to stay execu-
tion on the judgment. On the plaintiff's petition
a commission of lunacy was issued to inquire whether
the defendant was compos mentis. It was found
that he was so unless the fact that he was born deaf
and dumb made him otherwise. Thereupon Chan-
cellor Kent dismissed the bill but held the inquiry
so reasonable that he imposed no costs. The old
books of England fully justified his view; and why?
History again gives us the true reason. The Roman
law held very properly that the dumb, and by ex-
tension the deaf, could not make the contract called
stipulatio because the essence of that contract was
a formal question and answer which the dumb could
not utter and the deaf could not hear. Bracton
copies the Roman law and repeats the true reason,
that they could not express assent, cons entire; but
shows that he had missed the meaning of stipidari
by suggesting that perhaps it might be done by
gestures or writing. Fleta copied Bracton, but
seemed to think that the trouble was inability to
bring the consenting mind, and whereas the Roman
law explained that the rule did not apply to one
who was only hard of hearing qui tardius exaudit
Fleta seems to have supposed that this pointed
to a difference between a man born deaf and dumb
and one who became so later in life. 15 In Perkins's
Profitable Book, this is improved upon by requiring
that the man should be bora blind, deaf, and dumb,

15 But see C. 6, 22, 10.

LAW IN SCIENCE SCIENCE IN LAW 229

and then the reason Is developed that "a man that
is born blind, deaf, and dumb can have no under-
standing, so that he cannot make a gift or a grant. 37 18
In a case before Vice-Chancellor Wood 1T good sense
prevailed, and it was laid down that there is no ex-
ception to the presumption of sanity in the case of a
deaf and dumb person.

Other cases of what I have called inflated and un-
real explanations, which collapse at the touch of
history, are the liability of a master for the torts of
his servant in the course of his employment, to which
I have referred earlier, and which thus far never, in
my opinion, has been put upon a rational footing;
and the liability of a common carrier, which, as I
conceive, is another distorted survival from the abso-
lute responsibility of bailees in early law, crossed
with the liability of those exercising a common calling
to which I have referred. These examples are suffi-
cient, I hope, to illustrate my meaning, and to point
out the danger of inventing reasons offhand for what-
ever we find established in the law. They lead me
to some other general considerations in which history
plays no part, or a minor part, but in which my
object is to show the true process of law-making, and
the real meaning of a decision upon a doubtful case
and thus, as in what I have said before, to help in
substituting a scientific foundation for empty words,

I pass from unreal explanations to unreal formulas
and inadequate generalizations, and I will take up

i PL 25; Co, Lit. 42d.

1T Harrod v. Harrod, i K. & J. 4, g.

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one or two with especial reference to the problems
with which we have to deal at the present time. The
first illustration which occurs to me, especially in view
of what I have been saying, is suggested by another
example of the power of fashion. I am immensely
struck with the blind imitativeness of man when I
see how a doctrine, a discrimination, even a phrase,
will run in a year or two over the whole English-
speaking world. Lately have we not all been bored
to death with volenti non fit injuria, and with Lord
Justice Bowen's remark that it is volenti and not
scienti? I congratulate any State in whose reports
you do not see the maxim and its qualification re-
peated. I blush to say that I have been as guilty
as the rest. Do we not hear every day of taking the
risk an expression which we never heard used as
it now is until within a very few years? Do we not
hear constantly of invitation and trap which came
into vogue within the memory of many, if not most
of those who are here? Heaven forbid that I should
find fault with an expression because it is new, or
with the last mentioned expressions on any ground!
Judges commonly are elderly men, and are more
likely to hate at sight any analysis to which they
are not accustomed, and which disturbs repose of
mind, than to fall in love with novelties. Every liv-
ing sentence which shows a mind at work for itself
is to be welcomed. It is not the first use but the
tiresome repetition of inadequate catch words which
I am observing phrases which originally were con-
tributions, but which, by their very felicity, delay

LAW IN SCIENCE SCIENCE IN LAW 231

further analysis for fifty years. That comes from
the same source as dislike of novelty intellectual
indolence or weakness a slackening in the eternal
pursuit of the more exact.

The growth of education is an increase in the
knowledge of measure. To use words familiar to
logic and to science, it is a substitution of quanti-
tative for qualitative judgments. The difference
between the criticism of a work of art by a man
of perception without technical training and that by
a critic of the studio will illustrate what I mean.
The first, on seeing a statue, will say, "It is gro-
tesque/' a judgment of quality merely; the second
will say, "That statue is so many heads high, instead
of the normal so many heads." His judgment is one
of quantity. On hearing a passage of Beethoven's
Ninth Symphony the first will say, "What a gorgeous
sudden outburst of sunshine!" the second, "Yes,
great idea to bring in his major third just there,
wasn't it?" Well, in the law we only occasionally
can reach an absolutely final and quantitative de-
termination, because the worth of the competing
social ends which respectively solicit a judgment for
the plaintiff or the defendant cannot be reduced to
number and accurately fixed. The worth, that is,
the intensity of the competing desires, varies with
the varying ideals of the time, and, if the desires
were constant, we could not get beyond a relative
decision that one was greater and one was less. But
it is of the essence of improvement that we should
be as accurate as we can. Now to recur to such

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expressions as taking the risk and volenti non fit
injuria, which are very well for once in the sprightly
mouth which first applies them, the objection to the
repetition of them as accepted legal formulas is that
they do not represent a final analysis, but dodge diffi-
culty and responsibility with a rhetorical phrase.
When we say that a workman takes a certain risk as
incident to his employment, we mean that on some
general grounds of policy blindly felt or articulately
present to our mind, we read into his contract a term
of which he never thought; and the real question in
every case is, What are the grounds, and how far
do they extend? The question put in that form
becomes at once and plainly a question for scientific
determination, that is, for quantitative comparison
by means of whatever measure we command. When
we speak of taking the risk apart from contract, I
believe that we merely are expressing what the law
means by negligence, when for some reason or other
we wish to express it in a conciliatory form.

In our approach towards exactness we constantly
tend to work out definite lines or equators to mark
distinctions which we first notice as a difference of
poles. It is evident in the beginning that there must
be differences in the legal position of infants and
adults. In the end we establish twenty-one as the
dividing point. There is a difference manifest at
the outset between night and day. The statutes of
Massachusetts fix the dividing points at one hour
after sunset and one hour before sunrise, ascertained
according to mean time. When he has discovered

LAW IN SCIENCE SCIENCE IN LAW 333

that a difference is a difference of degree, that dis-
tinguished extremes have between them a penumbra
in which one gradually shades into the other, a tyro
thinks to puzzle you by asking where you are going
to draw the line, and an advocate of more experience
will show the arbitrariness of the line proposed by
putting cases very near to it on one side or the other.
But the theory of the law is that such lines exist, be-
cause the theory of the law as to any possible conduct
is that it is either lawful or unlawful. As that dif-
ference has no gradation about it, when applied to
shades of conduct that are very near each other it
has an arbitrary look. We like to disguise the arbi-
trariness, we like to save ourselves the trouble of
nice and doubtful discriminations. In some regions
of conduct of a special sort we have to be informed
of facts which we do not know before we can draw
our lines intelligently, and so, as we get near the
dividing point, we call in the jury. From saying that
we will leave a question to the jury to saying that
it is a question of fact is but a step, and the result
is that at this day it has come to be a widespread
doctrine that negligence not only is a question for
the jury but is a question of fact I have heard
it urged with great vehemence by counsel, and calmly
maintained by professors that, in addition to their
wrongs to labor, courts were encroaching upon the
province of the jury when they directed a verdict
in a negligence case, even in the unobtrusive form
of a ruling that there was no evidence of neglect.
1 venture to think, on the other hand, now, as

234 COLLECTED LEGAL PAPERS

I thought twenty years ago, before I went upon the
bench, that every time that a judge declines to
rule whether certain conduct is negligent or not he
avows his inability to state the law, and that the
meaning of leaving nice questions to the jury is that
while if a question of law is pretty clear we can
decide it, as it is our duty to do, if it is difficult it
can be decided better by twelve men at random from
the street* If a man fires a gun over a prairie that
looks empty to the horizon, or crosses a railroad
which he can see is clear for a thousand yards each
way, he is not negligent, that is, he is free from legal
liability in the first case, he has not prevented his
recovery by his own conduct, if he is run over, in
the second, as matter of law. If he fires a gun into
a crowded street, or tries to cross a track ten feet
in front of an express train in full sight running sixty
miles an hour, he is liable, or he cannot recover,
again as matter of law, supposing these to be all
the facts in the case. What new question of fact
is introduced if the place of firing is something half
way between a prairie and a crowded street, or if
the express train is two hundred, one hundred, or
fifty yards away? I do not wish to repeat arguments
which I published long ago, and which have been
more or less quoted in leading text-books. I only
wish to insist that false reasons and false analogies
shall not be relied upon for daily practice. It is so
easy to accept the phrase "there is no evidence of
negligence," and thence to infer, as the English
House of Lords has inferred, as Professor Thayer

LAW IN SCIENCE SCIENCE IN LAW 235

infers in his admirable Preliminary Treatise on Evi-
dence which has appeared since these words were
written, that the question is the same in kind as any
other question whether there is evidence of a fact.
When we rule on evidence of negligence we are
ruling on a standard of conduct, a standard which we
hold the parties bound to know beforehand, and
which in theory is always the same upon the same
facts and not a matter dependent upon the whim of
the particular jury or the eloquence of the particular
advocate. And I may be permitted to observe that,
referring once more to history, similar questions
originally were, and to some extent still are, dealt
with as questions of law. It was and is so on the
question of probable cause in malicious prosecution. 18
It was so on the question of necessaries for an
infant. 19 It was so in questions of what is reason-
able, 20 as a reasonable fine, 21 convenient time, 22
seasonable time, 23 reasonable time, 24 reasonable notice
of dishonor. 25 It is so in regard to the remoteness

18 Knight v. Jermin, Cro. Eliz. 134; S.C. nom. Knight v. German,
Cro. Eliz. 70; Paine v. Rochester, Cro. Eliz. 871; Chambers v. Taylor,
Cro. Eliz. 900.

19 Mackarell v. Bachelor, Cro. Eliz. 583. As to married women
see Manby v. Scott, i Siderfm, 109, 2 Sm. L.C.

20 Caterall v. Marshall, i Mod. 70.

21 Hobart v. Hammond, 4 Co. Rep. 270.

22 Stodder v. Harvey, Cro. Jac. 204.

2 3 Bell v. Wardell, Willes, 202, AD. 1740.
2 * Butler v. Play, i Mod. 27.

2 5 Tindal v. Brown, i T.R. 167, AX). 1786. In this case an exact
line has been worked out for commercial paper, and an arbitrary rule
established.

236 COLLECTED LEGAL PAPERS

of damage in an action of contract. 26 Originally in
malicious prosecution, probable cause, instead of be-
ing negatived in the declaration, was pleaded by the
defendant, and the court passed upon the sufficiency
of the cause alleged. In the famous case of Weaver
i). Ward, 27 the same course was suggested as proper
for negligence. I quote: "as if the defendant had
said that the plaintiff ran across his piece when it
was discharging, or had set forth the case with the
circumstances, so as it had appeared to the court that
it had been inevitable, and that the defendant had
committed no negligence to give occasion to the
hurt." But about the middle of the last century,
when the rale of conduct was complicated with prac-
tical details the court began to leave some of these
questions to the jury. Nevertheless, Mr. Starkie, a
man of intellect, who was not imposed upon by
phrases, very nearly saw the ground upon which it
was done, and puts it on the purely practical distinc-
tion that when the circumstances are too special and
complicated for a general rule to be laid down the
jury may be called in. But it is obvious that a
standard of conduct does not cease to be law because
the facts to which that standard applies are not
likely often to be repeated.

I do not believe that the jury have any historic
or a priori right to decide any standard of conduct.

26 Hobbs v. London & Southwestern Railway, L.R. 10 QJB. in,
122; Hammond & Co. v, Bussey, 20 QJ3.D. 79, 89; Johnston v. Faxon,
172 Mass., 466.

27 Hobart, 134.

LAW IN SCIENCE SCIENCE IN LAW 237

I think that the logic of the contrary view would be
that every decision upon such a question by the court
is an invasion of their province, and that all the law
properly is in their breasts. I refer to the subject,
however, merely as another matter in which phrases
have taken the place of real reasons, and to do my
part toward asserting a certain freedom of approach
in dealing with negligence cases, not because I wish
to quarrel with the existing and settled practice. I
think that practice may be a good one, as it certainly
is convenient, for Mr. Starkie's reason. There are
many cases where no one could lay down a standard
of conduct intelligently without hearing evidence
upon that, as well as concerning what the conduct
was. And although it does not follow that such
evidence is for the jury, any more than the question
of fact whether a legislature passed a certain statute,
still they are a convenient tribunal, and if the evi-
dence to establish a rule of law is to be left to them,
it seems natural to leave the conclusion from the
evidence to them as well. I confess that in my expe-
rience I have not found juries specially inspired for
the discovery of truth. I have not noticed that they
could see further into things or form a saner judg-
ment than a sensible and well trained judge. I have
not found them freer from prejudice than an ordi-
nary judge would be. Indeed one reason why I
believe in our practice of leaving questions of negli-
gence to them is what is precisely one of their gravest
defects from the point of view of their theoretical
function: that they will introduce into their verdict

238 COLLECTED LEGAL PAPERS

a certain amount a very large amount, so far as
I have observed of popular prejudice, and thus
keep the administration of the law in accord with
the wishes and feelings of the community. Possibly
such a justification is a little like that which an
eminent English barrister gave me many years ago
for the distinction between barristers and solicitors.
It was in substance that if law was to be practised
somebody had to be damned, and he preferred that
it should be somebody else.

My object is not so much to point out what seem
to me to be fallacies in particular cases as to enforce
by various examples and in various applications the
need of scrutinizing the reasons for the rules which
we follow, and of not being contented with hollow
forms of words merely because they have been used
very often and have been repeated from one end of
the Union to the other. We must think things not
words, or at least we must constantly translate our
words into the facts for which they stand, if we are
to keep to the real and the true. I sometimes tell
students that the law schools pursue an inspirational
combined with a logical method, that is, the postu-
lates are taken for granted upon authority without
inquiry into their worth, and then logic is used as
the only tool to develop the results. It is a neces-
sary method for the purpose of teaching dogma.
But inasmuch as the real justification of a rale of
law, if there be one, is that it helps to bring about
a social end which we desire, it is no less necessary
that those who make and develop the law should

LAW IN SCIENCE SCIENCE IN LAW 239

have those ends articulately in their minds. I do
not expect or think it desirable that the judges should
undertake to renovate the law. That is not their
province. Indeed precisely because I believe that
the world would be just as well off if it lived
under laws that differed from ours in many ways,
and because I believe that the daim of our
especial code to respect is simply that it exists,
that it is the one to which we have become
accustomed, and not that it represents an eternal
principle, I am slow to consent to overruling
a precedent, and think that our important duty is to
see that the judicial duel shall be fought out in the
accustomed way. But I think it most important to
remember whenever a doubtful case arises, with cer-
tain analogies on one side and other analogies on the
other, that what really is before us is a conflict
between two social desires, each of which seeks to
extend its dominion over the case, and which can-
not both have their way. The social question is
which desire is stronger at the point of conflict.
The judicial one may be narrower, because one or
the other desire may have been expressed in previous
decisions to such an extent that logic requires us
to assume it to preponderate in the one before us.
But if that be dearly so, the case is not a doubtful
one. Where there is doubt the simple tool of logic
does not suffice, and even if it is disguised and un-
consdous, the judges are called on to exercise the
sovereign prerogative of dioice.
I have given an example of what seems to me the

240 COLLECTED LEGAL PAPERS

unlnstructive and Indolent use of phrases to save the
trouble of thinking closely, in the expression "taking
the risk," and of what I think a misleading use in
calling every question left to the jury a question
of fact. Let me give one of over-generalization, or
rather of the danger of reasoning from generaliza-
tions unless you have the particulars which they em-
brace in mind. A generalization is empty so far as
it is general. Its value depends on the number of
particulars which it calls up to the speaker and the
hearer. Hence the futility of arguments on economic
questions by any one whose memory is not stored
with economic facts. Allen v. Flood was decided
lately by the English House of Lords upon a case of
maliciously inducing workmen to leave the plaintiff's
employ. It is made harder to say what the precise
issue before the House was, by the fact that except
in fragmentary quotations it does not appear what
the jury were told would amount to a malicious inter-
ference. I infer that they were instructed as in
Temperton v. Russell, 28 in such a way that their
finding meant little more than that the defendant
had acted with knowledge and understanding of the
harm which he would inflict if successful. Or if I
should add an intent to harm the plaintiff without
reference to any immediate advantage to the defend-
ant, still I do not understand that finding meant
that the defendant's act was done from disinterest-
edly malevolent motives, and not from a wish to
better the defendant's union in a battle of the mar-

28 *893i I QJ&. 71$.

LAW IN SCIENCE SCIENCE IN LAW 241

ket. Taking the point decided to be what I suppose
it to be, this case confirms opinions which I have had
occasion to express judicially, and commands my
hearty assent. But in the elaborate, although to my
notion inadequate, discussion which took place, emi-
nent judges intimated that anything which a man
has a right to do he has a right to do whatever his
motives, and this has been hailed as a triumph of the
principle of external standards in the law, a prin-
ciple which I have done my best to advocate as well
as to name. Now here the reasoning starts from the
vague generalization Right, and one asks himself at
once whether it is definite enough to stand the
strain. If the scope of the right is already deter-
mined as absolute and irrespective of motive, cadit
quaestio, there is nothing to argue about. So if all
rights have that scope. But if different rights are
of different extent, if they stand on different grounds
of policy and have different histories, it does not fol-
low that because one right is absolute, another is
and if you simply say all rigjits shall be so, that is
only a pontifical or imperial way of forbidding dis-
cussion. The right to sell property is about as abso-
lute as any I can think of, although, under statutes
at least, even that may be affected by motive, as in
the case of an intent to prefer creditors. But the
privilege of a master to state his servant's character
to one who is thinking of employing him is also a
right within its limits. Is it equally extensive? I
suppose it would extend to mistaken statements vol-
unteered in good faith out of love for the possible

242 COLLECTED LEGAL PAPERS

employer. Would it extend to such statements
volunteered simply out of hate for the man? To
my mind here, again, generalities are worse than use-
less, and the only way to solve the problem presented
is to weigh the reasons for the particular right claimed
and those for the competing right to be free from
slander as well as one can, and to decide which set
preponderates. Any solution in general terms seems
to me to mark a want of analytic power.

Gentlemen, I have tried to show by examples
something of the interest of science as applied to the
law, and to point out some possible improvement in
our way of approaching practical questions in the
same sphere. To the latter attempt, no doubt, many
will hardly be ready to yield me their assent. But
in that field, as in the other, I have had in mind an
ultimate dependence upon science because it is finally
for science to determine, so far as it can, the relative
worth of our different social ends, and, as I have
tried to hint, it is our estimate of the proportion be-
tween these, now often blind and unconscious, that
leads us to insist upon and to enlarge the sphere
of one principle and to allow another gradually to
dwindle into atrophy. Very likely it may be that
with all the help that statistics and every modern
appliance can bring us there never will be a common-
wealth in which science is everywhere supreme. But
it is an ideal, and without ideals what is life worth?
They furnish us our perspectives and open glimpses
of the infinite. It often is a merit of an ideal to
be unattainable. Its being so keeps forever before

LAW IN SCIENCE SCIENCE IN LAW 243

us something more to be done, and saves us from
the ennui of a monotonous perfection. At the least
it glorifies dull details, and uplifts and sustains weary
years of toil with George Herbert's often quoted
but ever-inspiring verse:

"Who sweeps a room as for Thy laws,
Makes that and the action fine."

SPEECH

AT A DINNER GIVEN TO CHIEF JUSTICE HOLMES

BY THE BAR ASSOCIATION OF BOSTON

ON MARCH 7, 1900. *

GENTLEMEN OF THE SUFFOLK BAR:

THE kindness of this reception almost unmans me,
and it shakes me the more when taken with a kind
of seriousness which the moment has for me. As
with a drowning man, the past is telescoped into a
minute, and the stages are all here at once in my
mind. The day before yesterday I was at the law
school, fresh from the army, arguing cases in a little
club with Goulding and Beaman and Peter Olney,
and laying the dust of pleading by certain sprinklings
which Huntington Jackson, another ex-soldier, and
I managed to contrive together. A little later in
the day, in Bob Morse's office, I saw a real writ,
acquired a practical conviction of the difference be-
tween assumpsit and trover, and marvelled open-
mouthed at the swift certainty with which a master
of his business turned it off.

Yesterday I was at the law school again, in the
chair instead of on the benches, when my dear part-
ner, Shattuck, came out and told me that in one hour
the Governor would submit my name to the council
for a judgeship, if notified of my assent. It was a

* From Speeches (1913), Little, Brown & Co.
244

SPEECH AT BAR DINNER 245

stroke of lightning which changed the whole course
of my life.

And the day before yesterday, gentlemen, was
thirty-five years, and yesterday was more than eigh-
teen years, ago. I have gone on feeling young, but
I have noticed that I met fewer of the old to whom
to show my deference, and recently I was startled
by being told that ours is an old bench. Well, I
accept the fact, although I find it hard to realize,
and I ask myself, what is there to show for this half
lifetime that has passed? I look into my book in
which I keep a docket of the decisions of the full
court which fall to me to write, and find about a
thousand cases. A thousand cases, many of them
upon trifling or transitory matters, to represent
nearly half a lifetime! A thousand cases, when one
would have liked to study to the bottom and to say
his say on every question which the law ever has pre-
sented, and then to go on and invent new problems
which should be the test of doctrine, and then to
generalize it all and write it in continuous, logical,
philosophic exposition, setting forth the whole corpus
with its roots in history and its justifications of ex-
pedience real or supposed!

Alas, gentlemen, that is life. I often imagine
Shakespeare or Napoleon summing himself up and
thinking: "Yes, I have written five thousand lines of
solid gold and a good deal of padding I, who would
have covered the milky way with words that out-
shone the stars I" "Yes, I beat the Austrians in
Italy and elsewhere: I made a few brilliant cam-

246 COLLECTED LEGAL PAPERS

paigns, and I ended in middle life in a cul-de-sac
I, who had dreamed of a world monarchy and Asiatic
power." We cannot live our dreams. We are lucky
enough if we can give a sample of our best, and if
in our hearts we can feel that it has been nobly done.

Some changes come about in the process, changes
not necessarily so much in the nature as in the
emphasis of our interest. I do not mean in our wish
to make a living and to succeed of course, we all
want those things but I mean in our ulterior in-
tellectual or spiritual interest, in the ideal part, with-
out which we are but snails or tigers.

One begins with a search for a general point of
view. After a time he finds one, and then for a while
he is absorbed in testing it, in trying to satisfy him-
self whether it is true. But after many experiments
or investigations all have come out one way, and his
theory is confirmed and settled in his mind, he knows
in advance that the next case will be but another
verification, and the stimulus of anxious curiosity is
gone. He realizes that his branch of knowledge only
presents more illustrations of the universal principle;
he sees it all as another case of the same old ennui,
or the same sublime mystery for it does not matter
what epithets you apply to the whole of things, they
are merely judgments of yourself. At this stage the
pleasure is no less, perhaps, but it is the pure pleasure
of doing the work, irrespective of further aims, and
when you reach that stage you reach, as it seems to
me, the triune formula of the joy, the duty, and the
end of life.

SPEECH AT BAR DINNER 247

It was of this that Malebranche was thinking when
he said that, if God held in one hand truth, and in
the other the pursuit of truth, he would say: "Lord,
the truth is for thee alone; give me the pursuit. "
The joy of life is to put out one's power in some
natural and useful or harmless way. There is no
other. And the real misery is not to do this. The
hell of the old world's literature is to be taxed beyond
one's powers. This country has expressed in story
- I suppose because it has experienced it in life
a deeper abyss, of intellectual asphyxia or vital ennui,
when powers conscious of themselves are denied their
chance.

The rule of joy and the law of duty seem to me all
one. I confess that altruistic and cynically selfish
talk seem to me about equally unreal. With all
humility, I think "Whatsoever thy hand findeth to
do, do it with thy might" infinitely more important
than the vain attempt to love one's neighbor as one's
self. If you want to hit a bird on the wing, you
must have all your will in a focus, you must not be
thinking about yourself, and, equally, you must not
be thinking about your neighbor; you must be living
in your eye on that bird. Every achievement is a
bird on the wing.

The joy, the duty, and, I venture to add, the end
of life. I speak only of this world, of course, and of
the teachings of this world. I do not seek to trench
upon the province of spiritual guides. But from the
point of view of the world the end of life is life.
Life is action, the use of one's powers. As to use

24 8 COLLECTED LEGAL PAPERS

them to their height is our joy and duty, so it is the
one end the justifies itself. Until lately the best
thing that I was able to think of in favor of civiliza-
tion, apart from blind acceptance of the order of the
universe, was that it made possible the artist, the
poet, the philosopher, and the man of science. But
I think that is not the greatest thing. Now I believe
that the greatest thing is a matter that comes directly
home to us all. When it is said that we are too much
occupied with the means of living to live, I answer
that the chief worth of civilization is just that it
makes the means of living more complex; that it
calls for great and combined intellectual efforts,
instead of simple, uncoordinated ones, in order that
the crowd may be fed and clothed and housed and
moved from place to place. Because more complex
and intense intellectual efforts mean a fuller and
richer life. They mean more life. Life is an end in
itself, and the only question as to whether it is worth
living is whether you have enough of it.

I will add but a word. We all are very near
despair. The sheathing that floats us over its waves
is compounded of hope, faith in the unexplainable
worth and sure issue of effort, and the deep, sub-con-
scious content which comes from the exercise of our
powers. In the words of a touching negro song

Sometimes I's up, sometimes Fs down,
Sometimes I's almost to the groun 7 ;

but these thoughts have carried me, as I hope they
will cany the young men who hear me, through long

SPEECH AT BAR DINNER 249

years of doubt, self -distrust, and solitude. They do
now, for, although it might seem that the day of
trial was over, in fact it is renewed each day. The
kindness which you have shown me makes me bold
in happy moments to believe that the long and
passionate struggle has not been quite in vain.

MONTESQUIEU *

is no new thing under the sun," It is the
judgment of a man of the world, and from his point
of view it is true enough. The things which he sees
in one country he sees in another, and he is slightly
bored from the beginning. But the judgment is
quite untrue from the point of view of science or
philosophy. From the time of Pericles to now, dur-
ing the whole period that counts in the intellectual
history of the race, the science or philosophy of one
century has been different from that of the one
before, and in some sense further along. By a corol-
lary easy to work out, we have the paradox that the
books which are always modern, the thoughts which
are as stinging to-day as they were in their cool youth,
are the books and thoughts of the men of the world.
Ecclesiastes, Horace, and Rochefoucauld give us as
much pleasure as they gave to Hebrew or Roman or
the subject of Louis XIV. In this sense it is the
second rate that lasts. But the greatest works of
intellect soon lose all but their historic significance.
The science of one generation is refuted or out-
generalized by the science of the next; the philosophy
of one century is taken up or transcended by the
philosophy of a later one; and so Plato, St. Augus-
tine, and Descartes, and we almost may say Kant and

* Introdiicticm to a reprint of the Esprit des Lois. (1900.)
250

MONTESQUIEU 251

Hegel, are not much more read than Hippocrates or
Cuvier or Bichat.

Montesquieu was a man of science and at the
same time a man of the world. As a man of science
he wrote an epoch-making book. And just because
and in so far as his book was a work of science and
epoch-making, it is as dead as the classics. The
later investigations which it did so much to start
have taken up what was true in it and have re-
futed what needed refutation, and without the need
of controversy they have killed many pale shoots
of fancy and insufficient knowledge simply by letting
in light and air. For a beginner to read Montes-
quieu with the expectation that there he is to find
his understanding of the laws of social being, would
be as ingenuous as to read Plato at eighteen expect-
ing to find in him the answers to the riddles of life
when they begin to perplex and sadden the mind of
youth. He would learn a good deal more from
Lecky. Montesquieu is buried under his own tri-
umphs, to use his own words with a different appli-
cation.

But Montesquieu also was a man of the world
and a man of esprit . That wit which deals with the
daily aspect of life and offers trenchant solutions in
two or three lines is a dangerous gift. It hardly is
compatible with great art, and Flaubert is not with-
out reason when he rails at it in his letters. It is
no less dangerous to great thinking, to that profound
and sustained insight which distrusts the dilemma as
an instrument of logic, and discerns that a thing may

252 COLLECTED LEGAL PAPERS

be neither A nor not A, but the perpendicular, or,
more plainly, that the truth may escape from the
limitations of a given plane of thought to a higher
one. Montesquieu said that Voltaire had too much
esprit to understand him. Nevertheless, Montes-
quieu had enough of it to have sustained the Satur-
day Review when Maine and Fitzjames Stephen or
Venables were its contributors, and as a man of
wit he still is fresh and pleasant reading. When one
runs through the Lettres Persanes one feels as he
does after reading Swift's Polite Conversation, struck
with a wondering shame at the number of things he
has been capable of feeling pleased with himself for
saying, when they had been noted as familiar two
hundred years before. He is in the realm of the ever
old which also is the ever new, those middle axioms
of experience which have been made from the begin-
ing of society, but which give each generation a fresh
pleasure as they are realized again in actual life.
There is a good deal more than this, because Montes-
quieu was a good deal more than a man of the
world, but there is this also in which we escape from
the preliminary dulness of things really great.

We find the same thing in the Esprit des Lois,
and one might read that work happily enough simply
as literature. One may read it also as a first step
in studies intended to be carried further and into later
days. But to read it as it should be read, to appre-
ciate the great and many-sided genius of the author
and his place in the canonical succession of the high
priests of thought, one must come back to it in the

MONTESQUIEU 253

Mness of knowledge and the ripeness of age. To
read the great works of the past with intelligent
appreciation, is one of the last achievements of a
studious life. But I will postpone what more I
have to say of this book until we come to it in
following the course of the author's career.

Charles de Secondat, Baron de la Brede, was born
at the Chateau de la Brede, near Bordeaux, on Jan-
uary 1 8, 1689. His family had gained distinction both
by the sword and in the law. His father was a magis-
trate, and intended that he should be one. His
mother was pious, and no doubt hoped that he might
be like her. Neither wish was entirely fulfilled.

At the moment of his birth a beggar presented him-
self at the chateau, and was retained that he might
be god-father to the young noble, and so remind him
all his life that the poor were his brothers. He was
nursed by peasants, and he kept through life a
touch of Gascon speech, and, the Frenchmen say,
something of the Gascon in his style. His early
education was by churchmen, but at twenty he
showed the tendency of his mind by composing an
essay to prove that the pagan did not deserve to be
eternally damned. The essay has not been pre-
served, but perhaps an echo of his reflections is to be
found in the thirty-fifth of the Lettres Persanes, in
which Usbek, who, not without dispute, has been
taken for the author, asks the "sublime dervish"
Gemchid whether he thinks that the Christians are
to be damned forever for not having embraced the
true religion of which they never have heard.

254 COLLECTED LEGAL PAPERS

He studied law. "When I left college," he said,
"they put law books into my hands. I tried to find
their inner meaning" (J'en cherchais V esprit). The
Esprit des Lois was the outcome, but not the imme-
diate outcome, of his studies. The immediate result
was that, at twenty-five, on February 24, 1714, he
was admitted to the Parlement de Bordeaux as con-
seillen On July 13, 1716, he succeeded to the office
(president a mortier) and fortune of an uncle, on
condition of assuming the name of Montesquieu.
Meantime he had married, and he had a son this same
year, and later two daughters. As a magistrate
he seems to have been not without weight. In 1722
he was intrusted with the shaping of a remonstrance
to the king against a tax on wines, which for the
time was successful. As a husband he was not want-
ing in decorum. But neither magistracy nor mar-
riage seems to have filled his life.

He made a reasonable amount of love in his day,
I infer not wholly before 1715. Whether or not he
would have said that the society of women makes us
"subtle and insincere," he did say that it spoils our
morals and forms our taste. I suspect also that it
added a poignancy to his phrase when he came to
write, as it certainly gave him a freedom and alert-
ness of interest in dealing with matters of sex. He
took Ms passions easily. As soon as he ceased to
believe that a woman loved him, he broke with her
at once, he says, and elsewhere he tells us in more
general terms that he never had a sorrow which an
hour's reading would not dispel. At times his de-

MONTESQUIEU 255

tachment seems to have been too visible, as one lady
reproached him with writing his book in society.
Perhaps it was timidity, which he says was a plague
of his life. So much for his relations, domestic and
otherwise, with women. As to the magistracy, he
resigned his place in 1 72 6. He found procedure hard
to master, and it disgusted him to see men upon
whose talents he justly looked down excelling in a
matter that was too much for him.

About the same time that he succeeded his uncle
he joined a society in Bordeaux, in which for a while
he devoted himself to science. He made some experi-
ments, wrote some scientific memoirs, planned a phys-
ical history of the earth, and sent out circulars
of inquiry in 1719, but happily it all came to nothing,
and this failure, combined with the shortness of his
outward and the reach of his inward sight, helped
to fix his attention upon his kind. He had the "dis-
ease of book-making," and as early as 1721 he
published his Lettres Persanes. The putting of the
criticism of his own times into the mouth of an
intelligent foreigner, and all the Oriental coloring,
seem a trifle faded nowadays. But these are merely
the frame or excuse for a series of essays some-
what like those in the nearly contemporary Spec-
tator on social subjects and subjects of social in-
terest, running all the way from God to the Fashions.

In almost every letter there are things which have
been quoted so often that one is afraid to repeat
them. In one he makes a few reflections upon sui-
cide that are hard to answer, and which had a prac-

25 6 COLLECTED LEGAL PAPERS

tical aim, in view of the monstrous condition o the
law. In another he is equally outspoken with regard
to divorce, and says, not without some truth, that
wishing to tighten the knot the law has untied it,
and instead of uniting hearts, as it proposed, has
separated them forever. Before Adam Smith he re-
marks the activity of dissenting sects, and he points
out with unorthodox candor their service in reform-
ing the abuses of the established faith.

In the person of Usbek he says: "Everything inter-
ests me, everything excites my wonder. I am like a
child whose immature organs are keenly struck by
the most insignificant objects." Montesquieu proves
it in these letters. Alongside of such grave discus-
sions as the foregoing he has portraits, or rather
types, that still live. The parvenu tax farmer, the
father confessor, the old soldier who can not hope
for preferment "because we" (very sensibly) "believe
that a man who has not the qualities of a general
at thirty never will have them," the homme a bonnes
fortunes who has hair, little wit, and so much imperti-
nence, the poet (Montesquieu despised the poets, at
least those whom he saw) the poet, with grimaces
and language different from the others, who would
stand a beating better than the least criticism, the
grand seigneur who personates himself. "He took
a pinch of snuff so haughtily, he wiped his nose so
pitilessly, he spit with so much phlegm, he fondled his
dogs in a way so insulting to men, that I could not
weary of wondering." The decisionnaire: "In a
quarter of an hour he decided three questions of

MONTESQUIEU 257

morals, four problems of history, and five points of
physics. . . . They dropped the sciences and
talked of the news of the day. ... I thought that
I would catch him, and spoke of Persia. But I
hardly had said four words when he contradicted me
twice. ... Ah! ban Dieu! said I to myself, what
sort of man is this? Soon he will know the streets
of Ispahan better than L"

The letter on fashion ought to be quoted entire.
When he says in the next one that what is foreign
always seems ridiculous to the French, of course he is
only noticing an instance of the universal law, but he
makes us remember that Little Pedlington is every-
where, and that this day there is no more marked
Little Pedlingtonian than the Parisian boulevardier
man of letters. It is true that Montesquieu limits
his remarks to trifles. They readily will admit that
other people are wiser, he says, if you grant them
that they are better dressed. His talk about the
Spaniards is equally good. The Spaniards whom
they do not burn, he says, seem so attached to the
Inquisition that it would be ill-natured to deprive
them of it. But at the end he gives them their
revenge. He imagines a Spaniard in Paris and
makes him say that they have a house there in
which they shut up a few madmen in order to per-
suade the world that the rest are not mad. After
things of this sort, two pages further on we read that
the most perfect government is that which attains
its ends with the least cost, so that the one wMch
leads men in the way most according to their Indl-

258 COLLECTED LEGAL PAPERS

nation is best. What have two hundred years
added? What proximate test of excellence can be
found except correspondence to the actual equi-
librium of force in the community that is, conform-
ity to the wishes of the dominant power? Of course,
such conformity may lead to destruction, and it is
desirable that the dominant power should be wise.
But wise or not, the proximate test of a good govern-
ment is that the dominant power has its way.

There are considerations upon colonies, upon
population, upon monarchy, a striking prophecy that
the Protestant countries will grow richer and more
powerful and the Catholic countries weaker. There
is, in short, a scattering criticism of pretty nearly
everything in the social order, of a sceptically radical
kind, but always moderate and rational, with hints
and germs of his future work, interspersed with many
little sayings not too bright or good for human na-
ture's daily food, and with some which are famous,
such as, "It sometimes is necessary to change certain
laws, but the case is rare, and when it occurs one
should touch them only with a trembling hand"; or,
"Nature always acts slowly and, so to speak, spar-
ingly; her operations are never violent." This last
is said by Sorel to be the whole philosophy of the
Esprit des Lois, and suggests a more extensive phil-
osophy still, which no doubt was more or less in the
air, which found expression a little later in Linnaeus's
Natura nan factt saltus, and which nowadays in its
more developed form we call evolution.

Hie Lettres Persanes came out anonymously, os-

MONTESQUIEU 259

tensibly from Amsterdam, when Montesquieu was
little more than thirty, and ran through four editions
in the first year. The name of the author became
known to everybody. He went to Paris, and there
frequented the society of men and women whose
names to us of this country and time are but foam
from the sea of oblivion, but who were the best of
their day. There, to please the ladies, or a lady,
he wrote in 1725 the Temple de Gmde and Cephise
et V Amour, which need not delay us. He says that
only well-curled and well-powdered heads will under-
stand them. At the beginning of 1728 he was
elected to the Academy, which he, like other French-
men, had made sport of but desired to enter. He
had been elected before, but had been refused by
the king. This time he had better luck. Voltaire
and D'Alembert tell a tale of how it was managed.
Entrance to the Academy is apt to be an occasion
for the display of malice on the one side or the other;
the address of welcome twitted him with having no
recognized works to justify the election, under the
form of a compliment on the certainty that the pub-
lic would give him the credit of dever anonymous
ones. For this or other reasons he did not go much
to the Academy, and he soon set out upon a tour of
Europe. He went to Vienna, and there met the
Prince Eugene. He applied for a post as a diplomat,
and again, luddly for the world, he failed. He
visited Hungary, then Venice, where he met the
famous John Law and became a friend of Lord
Chesterfield; then Switzerland and Holland by way

260 COLLECTED LEGAL PAPERS

of the Rhine. From Holland he went with Lord
Chesterfield to England, where he remained for
nearly two years, returning in August, 1731, to La
Brede, his family, and his writing.

In 1734 he published his Considerations sur les
causes de la grandeur des Romains et de leur
decadence. He was drawing nearer to his great
work; from sporadic apergus he was turning to sys-
tematic exposition. It often is said, and with a good
deal of truth, that men reach their highest mark
between thirty and forty. Perhaps the statement
seems more significant than it really is, because men
generally have settled down to their permanent occu-
pation by thirty, and in the course of the next ten
years are likely to have found such leading and domi-
nant conceptions as they are going to find; the rest
of life is working out details. Montesquieu and
Kant either are exceptions to the rule or illustrate
the qualification just suggested. In their earlier life
as you look back at it you see the Critique and the
Esprit des Lois coming, but the fruit did not ripen
fully until they were in the neighborhood of sixty.
In 1734 Montesquieu was already forty-five.

Roman history has been rewritten since his day
by Niebuhr and his successors. But Montesquieu
gives us the key to his mode of thought and to all
fruitful thought upon historic subjects when he says
that "there are general causes, moral or physical, at
work in every monarchy, which elevate and maintain
it or work its downfall; all accidents are the result
of causes; and if the chance of a battle that is, a

MONTESQUIEU 261

special cause has ruined a state, there was a
general cause at work which made that state ready
to perish by a single battle. In a word, the main
current carries with it all the special accidents."

Montesquieu the ladies' man, Montesquieu the
student of science, Montesquieu the lover of travel
both real and fictitious, Montesquieu the learned in
the classics and admirer of that conventional an-
tiquity that passed so long for the real thing in
France all these Montesquieus unite in the Esprit
des Lois, as is pointed out most happily by Faguet,
whose many-sided and delicate appreciation of the
author I read just as I was writing this sentence.
The book, he says, is called Esprit des Lois; it should
have been called simply Montesquieu. Perhaps the
fact is due in part to the subject's not having become
a specialty. In the same way Adam Smith's Wealth
of Nations has many interesting and penetrating re-
marks that, alas! hardly would be allowed in a mod-
ern political economy, even if the writer had the
wit to make them. At all events, after his Roman
history, the rest of Montesquieu's life may be
summed up as the production of this volume. In the
preface he calls it the labor of twenty years. It
appeared in 1748. When it was done his hair had
whitened over the last books, and Ms eyes had grown
dim. "It seems to me," he said, "that the light left
to me is but the dawn of the day on which my eyes
shall dose forever," He published a defence of the
work in 1750, attended to the sale of wine from his
vineyards, noticed with pleasure that the sale seemed

262 COLLECTED LEGAL PAPERS

to have been increased in England by the publication
of his book, and died in Paris on February 10, 1755,
watched, if not like Arthur by weeping queens, at
least by the Duchess d'Aiguillon and a houseful of
loving and admiring friends. According to Mauper-
tuis, he was well proportioned, careless in dress,
modest in demeanor, candid in speech, simple in
Ms mode of life, and welcomed in society with uni-
versal joy. The medallion gives him a distinguished
face.

It would be out of place to offer an analysis of a
book which is before the reader, and it would take a
larger book to contain all the thoughts which it sug-
gests. The chapters on the feudal law are so far
separable from the rest that it had been thought a
mistake of Montesquieu to add them. The modern
student naturally would turn to Roth or whatever
still later man may displace Roth. With regard
to the main body of the work, one might say that
it expressed a theory of the continuity of the phe-
nomenal universe at a time when, through no fault of
the author, its facts were largely miraculous. He
was not able to see history as an evolution, he looked
at all events as if they were contemporaneous.
Montesquieu's Rome was the Rome of fable un-
critically accepted. His anthropology was anec-
dotic. His notion of a democracy suggests a Latin
town meeting rather than the later developements in
the United States and France. He made the world
realize the influence of the climate and physical en-
vironment which in our day furnished the already

MONTESQUIEU 263

forgotten Buckle a suggestive chapter but had not
the data to be more than a precursor.

His England the England of the threefold divi-
sion of power into legislative, executive and judicial
was a fiction invented by him, a fiction which mis-
led Blackstone and Delolme. Hear Bagehot in his
work upon the subject: "The efficient secret of the
English Constitution may be described as the close
union, the nearly complete fusion of the executive
and legislative powers." And again: "The Ameri-
can Constitution was made upon a most careful argu-
ment, and most of that argument assumes the king
to be the administrator of the English Constitution,
and an unhereditary substitute for him viz., a
president to be peremptorily necessary. Living
across the Atlantic, and misled by accepted doc-
trines, the acute framers of the Federal Constitu-
tion, even after the keenest attention, did not
perceive the Prime Minister to be the principal execu-
tive of the British Constitution, and the sovereign
a cog in the mechanism."

It is worth remarking that, notwithstanding his
deep sense of the inevitableness of the workings of
the world, Montesquieu had a possibly exaggerated
belief in the power of legislation, and an equally
strong conviction of the reality of abstract justice.
But it is vain to attempt to criticise the book in detail.
Indeed, it is more important to understand its rela-
tion to what had been done before than to criticise.
There is not space even to point out how many seeds
it sowed. Montesquieu is a precursor, to repeat the

264 COLLECTED LEGAL PAPERS

word, in so many ways. He was a precursor of polit-
ical economy. He was the precursor of Beccaria
in the criminal law. He was the precursor of Burke
when Burke seems a hundred years ahead of his time.
The Frenchmen tell us that he was the precursor of
Rousseau. He was an authority for the writers of
The Federalist. He influenced, and to a great
extent started scientific theory in its study of soci-
eties, and he hardly less influenced practice in legis-
lation, from Russia to the United States. His book
had a dazzling success at the moment, and since then
probably has done as much to remodel the world
as any product of the eighteenth century, which
burned so many forests and sowed so many fields.

And this was the work of a lonely scholar sitting
in a library. Like Descartes or Kant, he com-
manded the future from his study more than
Napoleon from his throne. At the same time he
affects no august sovereignty, but even gives us one
or two discreet personal touches full of a sort of
pathetic charm the "Italiam! Italiam!" when the
long day's work was done and the author saw his
god before darkness closed upon him; the suppressed
invocation at the beginning of Book XX; the proud
epigraph, "Prolem sine matre creatam" ; and above
all the preface, that immortal cheer to other lonely
spirits. It is the great sigh of a great man when he
has done a great thing. The last words of that are
the words with which this introduction should end.
"If this work meets with success, I shall owe it
largely to the majesty of my subject. However, I

MONTESQUIEU 265

do not think that I have been wholly wanting in
genius. When I have seen what so many great men
in France, England, and Germany have written be-
fore me, I have been lost in admiration, but I have
not lost my courage. 'And I too am a painter/ I
have said with Correggio."

JOHN MARSHALL *

IN ANSWER TO A MOTION THAT THE COURT ADJOURN,

ON FEBRUARY 4, IQOI, THE ONE HUNDREDTH

ANNIVERSARY OF THE DAY ON WHICH

MARSHALL TOOK HIS SEAT AS

CHIEF JUSTICE.

As we walk down Court Street in the midst of a
jostling crowd, intent like us upon to-day and its
affairs, our eyes are like to fall upon the small, dark
building that stands at the head of State Street, and,
like an ominous reef, divides the stream of business
in its course to the gray diffs that tower beyond.
And, whoever we may be, we may chance to pause
and forget our hurry for a moment, as we remember
that the first waves that foretold the coming storm
of the Revolution broke around that reef. But, if
we are lawyers, our memories and our reverence grow
more profound. In the Old State House, we re-
member, James Otis argued the case of the writs of
assistance, and in that argument laid one of the
foundations for American constitutional law. Just as
that little building is not diminished, but rather is
enhanced and glorified, by the vast structures which
somehow it turns into a background, so the begin-

* From Speeches (1913), Little, Brown & Co.
266

JOHN MARSHALL 267

nings of our national life, whether in battle or in law,
lose none of their greatness by contrast with all the
mighty things of later date, beside which, by every
law of number and measure, they ought to seem so
small. To us who took part in the Civil War, the
greatest battle of the Revolution seems little more
than a reconnoissance in force, and Lexington and
Concord were mere skirmishes that would not find
mention in the newspapers. Yet veterans who have
known battle on a modern scale, are not less aware of
the spiritual significance of those little fights, I ven-
ture to say, than the enlightened children of com-
merce who tell us that soon war is to be no more.

If I were to think of John Marshall simply by num-
ber and measure in the abstract, I might hesitate
in my superlatives, just as I should hesitate over the
battle of the Brandywine if I thought of it apart
from its place in the line of historic cause. But
such thinking is empty in the same proportion that
it is abstract. It is most idle to take a man apart
from the circumstances which, in fact, were his.
To be sure, it is easier in fancy to separate a person
from his riches than from Ms character. But it is
just as futile. Remove a square inch of mucous
membrane, and the tenor will sing no more. Re-
move a little cube from the brain, and the orator
will be speechless; or another, and the brave, gen-
erous and profound spirit becomes a timid and queru-
lous trifler. A great man represents a great ganglion
in the nerves of society, or, to vary the figure, a
strategic point in the campaign of history, and part

268 COLLECTED LEGAL PAPERS

of his greatness consists in his being there. I no
more can separate John Marshall from the fortunate
circumstance that the appointment of Chief Justice
fell to John Adams, instead of to Jefferson a month
later, and so gave it to a Federalist and loose con-
structionist to start the working of the Constitution,
than I can separate the black line through which he
sent his electric fire at Fort Wagner from Colonel
Shaw. When we celebrate Marshall we celebrate at
the same time and indivisibly the inevitable fact that
the oneness of the nation and the supremacy of the
national Constitution were declared to govern the
dealings of man with man by the judgments and
decrees of the most august of courts.

I do not mean, of course, that personal estimates
are useless or teach us nothing. No doubt to-day
there will be heard from able and competent persons
such estimates of Marshall. But I will not trench
upon their field of work. It would be out of place
when I am called on only to express the answer to
a motion addressed to the court and when many of
those who are here are to listen this afternoon to
the accomplished teacher who has had every occasion
to make a personal study of the judge, and again this
evening to a gentleman who shares by birth the
traditions of the man. My own impressions are only
those that I have gathered in the common course of
legal education and practice. In them I am con-
scious, perhaps, of some little revolt from our purely
local or national estimates, and of a wish to see things
and people judged by more cosmopolitan standards.

JOHN MARSHALL 269

A man is bound to be parochial in his practice to
give his life, and if necessary his death, for the place
where he has his roots. But his thinking should be
cosmopolitan and detached. He should be able to
criticise what he reveres and loves.

The Federalist, when I read it many years ago,
seemed to me a truly original and wonderful produc-
tion for the time. I do not trust even that judgment
unrevised when I remember that The Federalist and
its authors struck a distinguished English friend of
mine as finite; and I should feel a greater doubt
whether, after Hamilton and the Constitution itself,
Marshall's work proved more than a strong intellect,
a good style, personal ascendancy in his court, cour-
age, justice and the convictions of his party. My
keenest interest is excited, not by what are called
great questions and great cases, but by little deci-
sions which the common run of selectors would pass
by because they did not deal with the Constitution or
a telephone company, yet which have in them the
germ of some wider theory, and therefore of some
profound interstitial change in the very tissue of the
law. The men whom I should be tempted to com-
memorate would be the originators of transforming
thought. They often are half obscure, because what
the world pays for is judgment, not the original mind.

But what I have said does not mean that I shall
join in this celebration or in granting the motion
before the court in any half-hearted way. Not only
do I recur to what I said in the beginning, and re-
membering that you cannot separate a man from his

270 COLLECTED LEGAL PAPERS

place, remember also that there fell to Marshall per-
haps the greatest place that ever was filled by a
judge; but when I consider his might, his justice, and
his wisdom, I do fully believe that if American law
were to be represented by a single figure, sceptic and
worshipper alike would agree without dispute that
the figure could be one alone, and that one, John
Marshall.

A few words more and I have done. We live by
. symbols, and what shall be symbolized by any image
of the sight depends upon the mind of him who sees
it. The setting aside of this day in honor of a great
judge may stand to a Virginian for the glory of his
glorious State; to a patriot for the fact that time has
been on Marshall's side, and that the theory for
which Hamilton argued, and he decided, and Webster
spoke, and Grant fought, and Lincoln died, is now
our corner-stone. To the more abstract but farther-
reaching contemplation of the lawyer, it stands for
the rise of a new body of jurisprudence, by which
guiding principles are raised above the reach of
statute and State, and judges are entrusted with a
solemn and hitherto unheard-of authority and duty.
To one who lives in what may seem to him a solitude
of thought, this day as it marks the triumph of a
man whom some Presidents of his time bade carry
out his judgments as he could this day marks the
fact that all thought is social, is on its way to action;
that, to borrow the expression of a French writer,
every idea tends to become first a catechism and then
a code; and that according to its worth his unhelped

JOHN MARSHALL 271

meditation may one day mount a throne, and with-
out armies, or even with them, may shoot across the
world the electric despotism of an unresisted power.
It is all a symbol, if you like, but so is the flag. The
flag is but a bit of bunting to one who insists on
prose. Yet, thanks to Marshall and to the men of
his generation and for this above all we celebrate
him and them its red is our lif eblood, its stars our
world, its blue our heaven. It owns our land. At
will it throws away our lives.

The motion of the bar is granted, and the court
will now adjourn.

ADDRESS OF CHIEF JUSTICE HOLMES

At the Dedication of the Northwestern University
Law School Building, Chicago, October 20, 1902.

MR. PRESIDENT AND GENTLEMEN:

NATURE has but one judgment on wrong conduct
if you can call that a judgment which seemingly
has no reference to conduct as such the judgment
of death. That is the judgment or the consequence
which follows uneconomical expenditure if carried far
enough. If you waste too much food you starve;
too much fuel, you freeze; too much nerve tissue,
you collapse. And so It might seem that the law
of life is the law of the herd; that man should pro-
duce food and raiment in order that he might produce
yet other food and other raiment to the end of time.
Yet who does not rebel at that conclusion? Accept-
ing the premises, I nevertheless almost am prepared
to say that every joy that gives to life its inspiration
consists in an excursion toward death, although wisely
stopping short of its goal. Art, philosophy, charity,
the search for the north pole, the delirium of every
great moment in man's experience all alike mean
uneconomic expenditure mean waste mean a
step toward death. The justification of art is not
that it offers prizes to those who succeed in the
economic struggle, to those who in an economic sense
have produced the most, and that thus by indirection

272

NORTHWESTERN UNIVERSITY 273

it increases the supply of wine and oil. The justi-
fication is in art itself, whatever its economic effect.
It gratifies an appetite which in some noble spirits is
stronger than the appetite for food. The principle
might be pressed even further and be found to fur-
nish art with one of its laws. For it might be said,
as I often have said, and as I have been gratified to
find elaborated by that true poet Coventry Patmore,
that one of the grounds of aesthetic pleasure is waste,
I need not refer to Charles Lamb's well-known com-
ments on the fallacy that enough is as good as a feast.
Who does not know how his delight has been in-
creased to find some treasure of carving upon a
mediaeval cathedral in a back alley to see that
the artist has been generous as well as great, and
has not confined his best to the places where it could
be seen to most advantage? Who does not recognize
the superior charm of a square-hewed beam over a
joist set on edge which would be enough for the
work? To leave art, who does not feel that Nansen's
account of his search for the pole rather loses than
gains in ideal satisfaction by the pretense of a few
trifling acquisitions for science? If I wished to make
you smile I might even ask whether life did not gain
an enrichment from neglected opportunities which
would be missed in the snug filling out of every
chance. But I am not here to press a paradox. I
only mean to insist on the importance of the uneco-
nomic to man as he actually feels to-day. You may
philosophize about the honors of leisure as a sur-
vival; you may, if you like, describe in the same way,

374 COLLECTED LEGAL PAPERS

as I have heard them described, the ideals which
burn in the center of our hearts. None the less they
are there. They are categorical imperatives. They
hold their own against hunger and thirst; they scorn
to be classed as mere indirect supports of our bodily
needs, which rather they defy; and our friends the
economists would do well to take account of them,
as some great writers like M. Tarde would take
account of them, if they are to deal with man as
he is. No doubt already you have perceived the
reason why I have insisted upon this double view
of life. The special value of a university is that it
moves in the twofold direction of man's desires which
I have described. I have listened with interest to
able business men when they argued and testified
that a university training made men fitter to suc-
ceed in their practical struggles. I am far from de-
nying it. No doubt such a training gives men a
larger mastery of the laws of nature under which
they must work, a wider outlook over the world of
science and of fact. If it could give to every student
a scientific point of view, if education could make
men realize that you can not produce something
out of nothing and make them promptly detect the
pretense of doing so with which at present the talk
of every day is filled, I should think it had more than
paid for itself. Still more should I think so if it
could send men into the world with a good rudimen-
tary knowledge of the laws of their environment. I
can not believe that anything else would be so likely
to secure prosperity as the universal acceptance of

NORTHWESTERN UNIVERSITY 275

scientific premises in every department of thought.
But beside prosperity there is to be considered happi-
ness, which is not the same thing. The chance of a
university to enlarge men's power of happiness is at
least not less than its chance to enlarge their capacity
for gain. I own that with regard to this, as with re-
gard to every other aspiration of man, the most
important question seems to me to be, what are his
inborn qualities?

Mr. Ruskin's first rule for learning to draw, you
will remember, was, Be born with genius. It is the
first rule for everything else. If a man is adequate
in native force, he probably will be happy in the
deepest sense, whatever his fate. But we must not
undervalue effort, even if it is the lesser half. And
the opening which a university is sure to offer to all
the idealizing tendencies which, I am not afraid to
say, it ought to offer to the romantic side of life
makes it above all other institutions the conservator
of the vestal fire. Our tastes are finalities, and
it has been recognized since the days of Rome that
there is not much use in disputing about them. If
some professor should proclaim that what he wanted
was a strictly economic world, I should see no more
use in debating with him than I do in arguing with
those who despise the ideals which we owe to war.
But most men at present are on the university side.
They want to be told stories and to go to the play.
They want to understand and, if they can, to paint
pictures, and to write poems, whether the food prod-
uct is greater in the long run because of them or not.

276 COLLECTED LEGAL PAPERS

They want to press philosophy to the uttermost edge
of the articulate, and to try forever after some spirit-
ual ray outside the spectrum that will bring a mes-
sage to them from behind phenomena. They love
the gallant adventure which yields no visible return,
I think it the glory of that university which I know
best, that under whatever reserves of manner they
may hide it, its graduates have the romantic pas-
sion in their hearts.

But, gentlemen, there is one department of your
institution to which I must be permitted specially
to refer the department to which I am nearest by
profession, and to which I owe the honor of being
here. I mean, of course, the department of law.
Let me say one word about that before I sit down.
It was affirmed, I believe, by a man not without
deserved honor in his generation the late Chief
Justice Cooley that the law was and ought to be
commonplace. No doubt the remark has its truth.
It is better that the law should be commonplace than
that it should be eccentric. No doubt, too, in any
aspect it would seem commonplace to a mind that
understood everything. But that is the weakness
of all truth. If instead of the joy of eternal pursuit
you imagine yourself to have mastered it as a com-
plete whole, you would find yourself reduced to the
alternative either of finding the remotest achieve-
ment of quaternions or ontology the whole frame
of the universe, in short a bore, or of dilating with
undying joy over the proposition that twice two is
four. It seems to me that for men as they are, the

NORTHWESTERN UNIVERSITY 277

law may keep its every-day character and yet be
an object of understanding wonder and a field for
the lightning of genius. One reason why it gives me
pleasure to be here today and to express my good
wishes for the future and my appreciation of the past
of your law school, is that it is here and in places
like it that such wonder is kindled and that from
it may fly sparks that shall set free in some genius
his explosive message.

I am not dealing in generalities. I mean more than
good will to a law school, simply because it is a
law school. Indeed, I almost fear that the intellec-
tual ferment of the better schools may be too potent
an attraction to young men and seduce into the pro-
fession many who would be better elsewhere. But
I am thinking of this law school and no other. I
never have had an opportunity to give public expres-
sion to my sense of the value of the work of your
accomplished dean. 1 I have come in for my share of
criticism from him, as also I have had from him
words which have given me new courage on a lonely
road. But my appreciation of what I have seen from
his hands is untouched by personal relations. It is
solely because I think that it is the duty of those
who know to recognize the unadvertised first rate,
that I wish now to express my respect for his great
learning and originality and for the volume and del-
icacy of his production, which seem to me to de-
serve more distinct and public notice than, so far
as I am aware, they have received. I feel quite sure,

1 Professor John H. Wigmore.

278 COLLECTED LEGAL PAPERS

from his printed work, that his teaching will satisfy
the two-fold desire of man; that it will be enlightened
with intelligent economic views and give men what
they want to know when they go out to fight, but
that also it will send them forth with a pennon as
well as with a sword, to keep before their eyes in
the long battle the little flutter that means ideals,
honor, yes, even romance, in all the dull details.

ECONOMIC ELEMENTS *

I ENTERTAIN some opinions concerning the issues
raised by your questions, and though not strictly
responsive, I will state them.

The real problem is not who owns, but who con-
sumes, the annual product. The identification of
these two very different questions is the source of
many fallacies, and misleads many workingmen.
The real evil of fifty-thousand-dollar balls and other
manifestations of private splendor is that they tend
to confirm this confusion in the minds of the ignorant
by an appeal to their imagination, and make them
think that the Vanderbilts and Rockefellers swallow
their incomes like Cleopatra's dissolved pearl. The
same conception is at the bottom of Henry George's
Progress and Poverty. He thinks he has finished
the discussion when he shows the tendency of wealth
to be owned by the landlords. He does not consider
what the landlords do with it.

I conceive that economically it does not matter
whether you call Rockefeller or the United States
owner of all the wheat in the United States, if that
wheat is annually consumed by the body of the
people; except that Rockefeller, under the illusion
of self-seeking or in the conscious pursuit of power,

* A letter written in response to questions and not intended for
print, but reprinted here, as it was published in a magazine (1904).

279

2 8o COLLECTED LEGAL PAPERS

will be likely to bring to bear a more poignant
scrutiny of the future in order to get a greater return
for the next year.

If then, as I believe, the ability of the ablest men
under the present regime is directed to getting the
largest markets and the largest returns, such ability
is directed to the economically desirable end.

I have vainly urged our various statisticians to
exhibit in the well-known form the proportions of
the products consumed by the many and those con-
sumed by the few, expressed in labor hours or in any
other convenient way. This would show whether
private ownership was abused for the production of
an undue proportion of luxuries for the few. I do
not believe the luxuries would be one per cent.

It follows from what I have said that the objec-
tions to unlimited private ownership are sentimental
or political, not economic. Of course, as the size
of a private fortune increases, the interest of the
public in the administration of it increases. If a
man owned one-half of the wheat in the country and
announced his intention to burn it, such abuse of
ownership would not be permitted. The crowd
would kill him sooner than stand it.

But it seems to me that if every desirable object
were in the hands of a monopolist, intent on getting
all he could for it (subject to the limitation that it
must be consumed, and that it might not be wantonly
destroyed, as, of course, it would not be), the value
of the several objects would be settled by the in-
tensity of the desires for them respectively, and they

ECONOMIC ELEMENTS 281

would be consumed by those who were able to get
them and that would be the ideal result.

The first question put,* if I may be permitted to
say so, seems to me rather fanciful. I see no way of
answering it intelligently, and if I am right, it appears
to imply an acceptance of what I have already tried
to show to be a fallacy or confusion.

So far as I can answer it, what I should say would
be this: All that any man contributes to the world
is the intelligence which directs a change in the
place of matter. A man does not create the thing
he handles or the force he exerts. The force could
be got cheaper if the directing intelligence were not
needed. The whole progress of the world in a ma-
terial way is to put the need of intelligence further
back. It is obvious that the intelligence of an archi-
tect contributes more to the change of form which
takes place in a house than that of all the laboring
hands. How can any one measure the scope and
value of remote causes of change? How can I com-
pare the present effect on the lives of men of the
speculations of Kant and of the empire of Napoleon?
I should not think it absurd to assert that the former
counted for the more, though, of course, it is impos-
sible to prove it. My practical answer is that a
great fortune does not mean a corresponding con-
sumption, but a power of command; that some one
must exercise that command, and that I know of no
way of finding the fit man so good as the fact of
winning it in the competition of the market.

* Whether a man can render services entitling him to a fortune as
great as some of ours in America.

282 COLLECTED LEGAL PAPERS

I already have intimated my opinion that the
owner of a great fortune has public functions, and
therefore, subject to legal questions which I am not
considering, should be subject to some negative
restraint. Among others, I should like to see him
prohibited from giving great sums to charities which
could not be clearly justified as long-sighted public
investments.

The only other question on which I desire to say a
word is the nature of taxes in this connection. Taxes,
when thought out in things and results, mean an
abstraction of a part of the annual product for gov-
ernment purposes, and cannot mean anything else.
Whatever form they take in their imposition they
must be borne by the consumer, that is, mainly by
the working-men and fighting-men of the community.
It is well that they should have this fact brought
home to them, and not too much disguised by the
form in which the taxes are imposed.

ON K W. MAITLAND'S DEATH*

ONE is almost ashamed to praise a dead master
for what he did in a field where he was acknowledged
to be supreme. When his work is finished it is too
late for praise to give the encouragement which all
need, and of which the successful get too little.
Still, there is a pleasure in bearing one's testimony
even at that late time, and thus in justifying the
imagination of posthumous power on which all ideal-
ists and men not seeking the immediate rewards of
success must live. That imagination, if Mr. Mait-
land was not, as I fear, too modest to get much joy
from it, will be realized, I am sure. His profound
knowledge of the sources of English law equipped
him, as perhaps no other was equipped, to illustrate
and explain the present. His knowledge was only a
tool to his good sense. His good sense and insight
were illuminated and made vivid by his power of
statement and gift of narrative, so that any reason-
ably prepared reader of his writings, even those deal-
ing with what one would have expected to be dry
details, is sure to become interested, absorbed, and
charmed. His last work, the Life of Sir Leslie
Stephen, was a no less successful excursion into new
fields, and showed the same gifts, coupled with an

* Law Quarterly Review (1907).
283

284 COLLECTED LEGAL PAPERS

unconscious spirituality, which did not surprise, but
which found freer scope for expression there. To
elaborate an estimate of Mr. Maitland's achieve-
ments would require time which my occupations do
not permit me to give. But I would not willingly
miss the chance to say what I believe about him, and
to lay a wreath, if only of dry leaves, upon his grave.

HOLDSWORTH'S ENGLISH LAW*

THE study of English law has been slow to feel
the impulse of science. But during the last thirty
years, alongside of the practitioners to whom the law
is a ragbag from which they pick out the piece and
color that they want, there have been some students
who have striven to make their knowledge organic.
A brilliant result of that effort was Pollock and Mait-
land's history. Mr. Holdsworth is giving us another.
The first dealt mainly with the embryology of the sub-
ject. The present work intends to deal with it in its
maturity as well; and the two volumes just published
trace its development through the Year Books to the
point where we begin to recognize its adult form. A
development is hard to describe. Mr. Holdsworth is
to be complimented on the skill with which he has
done it, although it would be difficult to give an ac-
count of his book, precisely because of his skill. One
is made to feel the complex antecedents Saxon tra-
dition, Norman practice, the Roman law, the charac-
ter of kings, the rise of Parliament, the varying
economic needs and aims out of which the plant
has grown, and one is made to see the growth. The
reading leaves the conviction that one has received

* A History of English Law. By W. S. Holdsworth, D.C.L.
London: Methuen & Co., 1009. 8vo. Vol. II., xxxi, and 572 pp.; VoL
HI., xxxviii, and 532 pp. Law Quarterly Review (1909).

286 COLLECTED LEGAL PAPERS

the most important of object lessons in the birth and
life of ideas. The difficulty in remembering the
details is the difficulty of marking the steps of an
organic process. One sees that the embryo has taken
form, gained size and coherence, more readily than
one marks the moments of the change.

The line between antiquarianism and knowledge of
practical importance is kept with tact. Enough is
told to gratify disinterested philosophic curiosity, yet
not more than should be read by any one who desires
to understand his art. No doubt Mr. Holdsworth is
right in saying that "We cannot date the beginnings
of the common law much earlier than the first half
of the twelfth century." For that reason he properly
does not spend much time on what he calls Anglo-
Saxon antiquities, but what he says tells, and makes
a proper beginning. The Church and the Roman law
are other secondary influences, and those again are
delicately and judiciously expounded. They are
shown strengthening the royal power; impelling the
first attempt at systematizing the new corpus that
is to be; tending to qualify the old principle of
liability (stated somewhat strongly perhaps in the
proposition that a man acted at his peril); intro-
ducing the last will and also the book for land grants,
which fostered free alienation; suggesting new reme-
dies and the exceptio in pleading; and in short, in
various ways by their foreign atmosphere forcing the
growth of the native. plant, especially through their
influence on the King's Court. Much, perhaps most,
of what we are told has been told before, and the

HOLDSWORTH'S ENGLISH LAW 287

author is frank in his reference to previous work, but
it is told here in continuous form, with proportion,
and so as to bring out the story of the birth and life
of the common law.

Attention has been called before now to the strug-
gle for life carried on among ideas; to the result that
some perish and others put on the livery of the con-
queror; and to the fact that law only ends with a
theory, but begins with a concrete case. But so far
as I know these considerations have not been much
attended to heretofore. Mr. Holdsworth illustrates
them with more or less definite reference to this mode
of approach. A slight example is that twenty-one,
the time of coming of age for the knight, prevails over
fifteen, the time for the socman. But the best in-
stance is that of contract. We are shown how there
are brought under that head matters that earlier were
thought of in terms of grant, or like bailment formed
a head by themselves. The surety, from a hostage,
becomes a covenantor. We are given many illus-
trations of the persistence of the fides facta and the
oath as older competitors of the real and formal con-
tracts that finally got the power. Ecclesiastical
penalties for perjury in the breach of a promissory
oath continue to a late period, 1 and although the
opinion has been controverted, I think that there are
signs that ecclesiastical chancellors hesitated before
they denied a remedy for breach of faith.

1 In Chaucer's Frere's Tale the Archdeacon "dide execucioun In
punisshinge of ... diffamacioun . . . and of testanientSj Of coa-
tractes, and of lakke of sacraments/' etc

288 COLLECTED LEGAL PAPERS

While I am speaking of contract I may add that
the progress from tort to assumpsit seems to me bet-
ter told than it has been before. Perhaps there is
some perpetuation of what seems to me the con-
fusion between the fraud that is wrought if a man
keeps an executed consideration and will not perform
his promise, and the misfortune that may be caused
by not keeping a promise for which no consideration
has been given. The very meaning of the doctrine
of consideration is that if a man relies upon a promise
made without it, he does so at his peril. Unless
action on the faith of the promise is the conventional
inducement for the promise, it has no effect. By
conventional inducement I mean, of course, that
which is contemplated, as the ground for the promise,
by the bargain, whatever may be the motive in fact.
Unless my memory deceives me, the false doctrine
sometimes has been treated as if it were the main
ground out of which assumpsit grew.

If the development of ideas and their struggle
for life are the interests of the day, the interest of the
future, the final and most important question in the
law is that of their worth. I mean their worth in
a more far-reaching sense than that of expressing
the de facto will of the community for the time. On
this as yet no one has much to say. To answer it we
should have in the first place to establish the ideals
upon which our judgments of worth depend; and the
statement of such ideals by different classes would
differ, at least in form. But suppose that we had
agreed that the end of law was, for instance, the sur-

HOLDSWORTH'S ENGLISH LAW 289

vival of a certain type of man, still we should have
made very little way toward the founding of a scien-
tific code. Statistics would leave the effect of the
criminal law open to doubt. Who can prove that the
doctrine of master and servant, or the theory of con-
sideration, helps to attain the ideal assumed? The
attitude of the State toward marriage and divorce is
governed more by church and tradition than by facts.
Wherever we turn we find that what are called good
laws are apt to be called so because men see- that
they promote a result that they fancy desirable, and
do not see the bill that has to be paid in reactions
that are relatively obscure. One fancies that one
could invent a different code under which men would
have been as well off as they are now, if they had
happened to adopt it. But that if is a very great
one. The tree has grown as we know it. The prac-
tical question is what is to be the next organic step.
No doubt the history of the law encourages scepti-
cism when one sees how a rule or a doctrine has
grown up, or when one notices the naivete with
which social prejudices are taken for eternal prin-
ciples. But it also leads to an unconvinced con-
servatism. For it points out that almost the only
thing that can be assumed as certainly to be wished is
that men should know the rules by which the game
will be played. Doubt as to the value of some of
those rules is no sufficient reason why they should not
be followed by the courts. Legislation gives notice
at least if it makes a change. And after all, those of
us who believe with Mr. Lester Ward, the sociologist,

290 COLLECTED LEGAL PAPERS

in the superiority of the artificial to the natural, may
see in what has been done some ground for believing
that mankind yet may take its own destiny con-
sciously and intelligently in hand.

Mr. Holdsworth is telling us a profoundly interest-
ing story. It is one of the most important chapters
in the greatest human document the tale of what
men have most believed and most wanted. It is told
with learning and scientific instinct, and the book
is to be recommended equally to philosophers who
can understand it and to practical students of the
law. Readers of M. Tarde will see that author's
laws of imitation illustrated by the most striking
example, and if they doubt how far it can be said
that the principles of any system are eternal, will
realize that imitation of the past, until we have
a clear reason for change, no more needs justification
than appetite. It is a form of the inevitable to be
accepted until we have a clear vision of what differ-
ent thing we want.

LAW AND THE COURT

SPEECH AT A DINNER OF THE HARVARD LAW SCHOOL

ASSOCIATION OF NEW YORK ON FEBRUARY

15, 1913 *

MR. CHAIRMAN AND GENTLEMEN:

VANITY is the most philosophical of those feelings
that we are taught to despise. For vanity recognizes
that if a man is in a minority of one we lock him up,
and therefore longs for an assurance from others
that one's work has not been in vain. If a man's
ambition is the thirst for a power that comes not from
office but from within, he never can be sure that any
happiness is not a fool's paradise he never can be
sure that he sits on that other bench reserved for the
masters of those who know. Then too, at least
until one draws near to seventy, one is less likely to
hear the trumpets than the rolling fire of the front.
I have passed that age, but I still am on the firing
line, and it is only in rare moments like this that
there comes a pause and for half an hour one feels
a trembling hope. They are the rewards of a life-
time's work.

But let me turn to more palpable realities to
that other visible Court to which for ten now ac-
complished years it has been my opportunity to be-

* From Speeches (1913), Little, Brown & Co.
291

292 COLLECTED LEGAL PAPERS

long. We are very quiet there, but it is the quiet of
a storm centre, as we all know. Science has taught
the world scepticism and has made it legitimate to
put everything to the test of proof. Many beauti-
ful and noble reverences are impaired, but in these
days no one can complain if any institution, system,
or belief is called on to justify its continuance in life.
Of course we are not excepted and have not escaped.
Doubts are expressed that go to our very being.
Not only are we told that when Marshall pronounced
an Act of Congress unconstitutional he usurped a
power that the Constitution did not give, but we are
told that we are the representatives of a class a
tool of the money power. I get letters, not always
anonymous, intimating that we are corrupt. Well,
gentlemen, I admit that it makes my heart ache. It
is very painful, when one spends all the energies of
one's soul in trying to do good work, with no thought
but that of solving a problem according to the rules
by which one is bound, to know that many see sinister
motives and would be glad of evidence that one was
consciously bad. But we must take such things
philosophically and try to see what we can learn from
hatred and distrust and whether behind them there
may not be some germ of inarticulate truth.

The attacks upon the Court are merely an expres-
sion of the unrest that seems to wonder vaguely
whether law and order pay. When the ignorant are
taught to doubt they do not know what they safely
may believe. And it seems to me that at this time
we need education in the obvious more than investi-

LAW AND THE COURT 293

gation of the obscure. I do not see so much imme-
diate use in committees on the high cost of living
and inquiries how far it is due to the increased pro-
duction of gold, how far to the narrowing of cattle
ranges and the growth of population, how far to
the bugaboo, as I do in bringing home to people a
few social and economic truths. Most men. think
dramatically, not quantitatively, a fact that the rich
would be wise to remember more than they do. We
are apt to contrast the palace with the hovel, the
dinner at Sherry's with the working man's pail, and
never ask how much or realize how little is withdrawn
to make the prizes of success (subordinate prizes
since the only prize much cared for by the powerful
is power. The prize of the general is not a bigger
tent, but command). We are apt to think of owner-
ship as a terminus, not as a gateway, and not to
realize that except the tax levied for personal con-
sumption large ownership means investment, and
investment means the direction of labor towards the
production of the greatest returns returns that so
far as they are great show by that very fact that they
are consumed by the many, not alone by the few.
If I may ride a hobby for an instant, I should say
we need to think things instead of words to drop
ownership, money, etc., and to think of the stream
of products; of wheat and cloth and railway travel.
When we do, it is obvious that the many consume
them; that they now as truly have substantially all
there is, as if the title were in the United States; that
the great body of property is socially administered

294 COLLECTED LEGAL PAPERS

now, and that the function of private ownership is
to divine in advance the equilibrium of social desires
which socialism equally would have to divine, but
which, under the illusion of self-seeking, is more
poignantly and shrewdly foreseen.

I should like to see it brought home to the public
that the question of fair prices is due to the fact that
none of us can have as much as we want of all the
things we want; that as less will be produced than the
public wants, the question is how much of each prod-
uct it will have and how much go without; that thus
the final competition is between the objects of desire,
and therefore between the producers of those ob-
jects; that when we oppose labor and capital, labor
means the group that is selling its product and capital
all the other groups that are .buying it. The hated
capitalist is simply the mediator, the prophet, the
adjuster according to his divination of the future
desire. If you could get that believed, the body of
the people would have no doubt as to the worth of
law.

That is my outside thought on the present dis-
contents. As to the truth embodied in them, in part
it cannot be helped. It cannot be helped, it is as it
should be, that the law is behind the times. I told a
labor leader once that what they asked was favor,
and if a decision was against them they called it
wicked. The same might be said of their opponents.
It means that the law is growing. As law embodies
beliefs that have triumphed in the battle of ideas and
then have translated themselves into action, while

LAW AND THE COURT 295

there still is doubt, while opposite convictions still
keep a battle front against each other, the time for
law has not come; the notion destined to prevail is
not yet entitled to the field. It is a misfortune if
a judge reads his conscious or unconscious sympathy
with one side or the other prematurely into the law,
and forgets that what seem to him to be first prin-
ciples are believed by half his fellow men to be wrong.
I think that we have suffered from this misfortune, in
State courts at least, and that this is another and
very important truth to be extracted from the popu-
lar discontent. When twenty years ago a vague
terror went over the earth and the word socialism
began to be heard, I thought and still think that fear
was translated into doctrines that had no proper place
in the Constitution or the common law. Judges are
apt to be naif, simple-minded men, and they need
something of Mephistopheles. We too need educa-
tion in the obvious to learn to transcend our own
convictions and to leave room for much that we hold
dear to be done away with short of revolution by the
orderly change of law.

I have no belief in panaceas and almost none in
sudden ruin. I believe with Montesquieu that if
the chance of a battle I may add, the passage of
a law has ruined a state, there was a general cause
at work that made the state ready to perish by a
single battle or a law. Hence I am not much inter-
ested one way or the other in the nostrums now so
strenuously urged. I do not think the United
States would come to an end if we lost our power

296 COLLECTED LEGAL PAPERS

to declare an Act of Congress void. I do think the
Union would be imperiled if we could not make that
declaration as to the laws of the several States. For
one in my place sees how often a local policy pre-
vails with those who are not trained to national views
and how often action is taken that embodies what the
Commerce Clause was meant to end. But I am not
aware that there is any serious desire to limit the
Court's power in this regard. For most of the things
that properly can be called evils in the present state
of the law I think the main remedy, as for the evils
of public opinion, is for us to grow more civilized.

If I am right it will be a slow business for our
people to reach rational views, assuming that we are
allowed to work peaceably to that end. But as I
grow older I grow calm. If I feel what are perhaps
an old man's apprehensions, that competition from
new races will cut deeper than working men's dis-
putes and will test whether we can hang together and
can fight; if I fear that we are running through the
world's resources at a pace that we cannot keep;
I do not lose my hopes. I do not pin my dreams
for the future to my country or even to my race.
I think it probable that civilization somehow will last
as long as I care to look ahead perhaps with
smaller numbers, but perhaps also bred to greatness
and splendor by science. I think it not improbable
that man, like the grub that prepares a chamber for
the winged thing it never has seen but is to be that
man may have cosmic destinies that he does not
understand. And so beyond the vision of battling

LAW AND THE COURT 297

races and an impoverished earth I catch a dreaming
glimpse of peace.

The other day my dream was pictured to my mind.
It was evening. I was walking homeward on Penn-
sylvania Avenue near the Treasury, and as I looked
beyond Sherman's Statue to the west the sky was
aflame with scarlet and crimson from the setting sun.
But, like the note of downfall in Wagner's opera,
below the sky line there came from little globes the
pallid discord of the electric lights. And I thought
to myself the Gotterdammerung will end, and from
those globes clustered like evil eggs will come the
new masters of the sky. It is like the time in which
we live. But then I remembered the faith that I
partly have expressed, faith in a universe not meas-
ured by our fears, a universe that has thought and
more than thought inside of it, and as I gazed, after
the sunset and above the electric lights there shone
the stars.

INTRODUCTION TO THE GENERAL
SURVEY

BY EUROPEAN AUTHORS IN THE CONTINENTAL
LEGAL HISTORICAL SERIES*

THE authors whose writings are offered in this
volume and Series do not need introduction. They
introduce the man who has the honor for a moment
to associate his name with theirs. But a few words
from a veteran may catch the attention of those who
still are in the school of the soldier and have not seen
their first fight.

The philosophers teach us that an idea is the first
step toward an act. Beliefs, so far as they bear upon
the attainment of a wish (as most beliefs do), lead in
the first place to a social attitude, and later to com-
bined social action, that is, to law. Hence, ever since
it has existed, the law expressed what men most
strongly have believed and desired. And, as the be-
liefs and desires of the Western world have changed
and developed a good deal since the days of the
Twelve Tables and the Law of the Salian Franks,
I thought it dangerously near a platitude to say, a
dozen years ago, that the law might be regarded as a
great anthropological document. But, as a gentleman
prominent at the bar of one of the States professed

* Little, Brown & Co., Boston. 1913.
498

INTRODUCTION TO GENERAL SURVEY 299

difficulty In understanding what I meant, it is evident
that the rudiments need eternal repetition. Any man
who is interested in ideas needs only the suggestion
that I have made to realize that the history of the
law is the embryology of a most important set of
ideas, and perhaps more than any other history tells
the story of a race.

The trouble with general or literary historical
works is that they deal with premises or conclusions
that are both unqualified. We readily admit their
assumption that such and such a previous fact tended
to produce such and such a later one; but how much
of the first would be necessary to produce how much
of the last, and how much there actually was of either,
we are not told. On the other hand, in the history of
philosophy and economics we can say with more
confidence that we trace cause and effect. The one
shows the inward bond between the successive stages
of the thought of man; the other the sequence of
outward events that have governed his action and
(some believe) really have determined his thought.
At all events the latter fits the former as the outside
of a cathedral fits the inside, although there are
gargoyles and Mephistopheles without and angels and
saints within.

There is no place for the history of law in this
metaphor; but, in plain prose, it is midway between
the other two. As we follow it down from century to
century, we see logic at work attempting to develop
the concrete cases given in experience into universal
rules, and the struggle for life between the attempted

300 COLLECTED LEGAL PAPERS

generalizations and other competing forms. We
watch the metamorphosis of the simple into the com-
plex. We see changes of environment producing
new institutions, and new taking the place of old
beliefs and wants. We observe the illustrations, as
striking here as in poetry or music, of the universal
change of emphasis that each century brings along.
An argument that would have prevailed in Plowden's
time, and perhaps, would have raised a difficulty to
be got rid of in Lord Ellenborough's, now would be
answered only with a smile.

The most obvious moral of what I have said is
that the law will furnish philosophical food to philo-
sophical minds. The surgeon of my regiment in the
War of Secession used to divide the world into ex-
ternal and internal men. The distinction is as old as
Plato. For I take it that what makes the Banquet
immortal is not the divine gossip about Aristophanes
and Alcibiades and Socrates, but that it and some of
the Dialogues are the first articulate expression that
has come down to us of what internal men believe,
that ideas are more interesting than things. To the
internal men, I need say no more to recommend the
theme of this and the following volumes. But the
profit is not confined to them. When a man has a
working knowledge of his business, he can spend his
leisure better than in reading all the reported cases
he has time for. They are apt to be only the small
change of legal thought. They represent the compro-
mise of the moment between tradition and precedent
on the one side and the free conception of the desir-

INTRODUCTION TO GENERAL SURVEY 301

able on the other. It is worth while, even with the
most mundane ideals, to get as big a grasp of one's
subject as one can. And therefore it is worth while
to do what we can to enlighten our notions of the de-
sirable and to understand the precedents by which we
are constrained. The history of the law stands along-
side of sociology and economics as a necessary tool if
one is to practise law in a large way.

If what I have said is granted, not much argument
is needed to show that a survey of the general devel-
opment of Continental law is necessary to understand
our own. The relationship is too well established to
need new proofs, although I believe that there
still are standard treatises that ascribe trusts to
Rome and ignore the Salman. Indeed, I am not sure
that the best way of proving the need of this Series
would not be to present a series of Elegant Extracts
from text-books and decisions.

I can but envy the felicity of the generation to
whom it is made so easy to see their subject as a
whole. When I began, the law presented itself as
a ragbag of details. The best approach that I found
to general views on the historical side was the first
volume of Spence's Equitable Jurisdiction, and, on
the practical, Walker's American Law. The only
philosophy within reach was Austin's Jurisprudence.
It was not without anguish that one asked oneself
whether the subject was worthy of the interest of an
intelligent man. One saw people whom one respected
and admired leaving the study because they thought
it narrowed the mind; for which they had the author-

3 02 COLLECTED LEGAL PAPERS

ity of Burke. It required blind faith faith that
could not yet find the formula of justification for
itself. The works of foreign scholarship were then
inaccessible. One had to spend long days of groping,
with the inward fear that if one only knew where to
look, one would find that one's difficulties and ques-
tions were fifty years behind the times. Now, a man
can start with the knowledge that he starts fair
that the best results of Europe, as well as of this
country and England, are before him. And those
results are so illuminating that diligence alone is
enough to give him an understanding of how the law
came to be what it is, of its broadest generalizations,
and (so far as any one yet can state them) of the
reasons to be offered for continuing it in its present
form or for desiring a change.
WASHINGTON, B.C., November 28, 1911.

IDEALS AND DOUBTS*

FOR the last thirty years we have been preoccu-
pied with the embryology of legal ideas; and explana-
tions, which, when I was in college, meant a refer-
ence to final causes, later came to mean tracing origin
and growth. But fashion is as potent in the intellec-
tual world as elsewhere, and there are signs of an
inevitable reaction. The reaction, if there is one,
seems to me an advance, for it is toward the ultimate
question of worth. That is the text of an excellent
article, "History versus Value," by Morris R. Cohen
in the Journal of Philosophy, Psychology and Scien-
tific Methods, and although perhaps rather in the
form of conservation than of advance, of Del Vec-
chio's Formal Bases of Law in the Modern Legal
Philosophical Series. To show that it has my sym-
pathy I may refer to the Law Quarterly Review*
But perhaps it will not be out of place to express the
caution with which I am compelled to approach any
general recension from which the young hope so
much.

The first inquiry is for the criterion. If I may
do Del Vecchio the wrong of summing up in a sen-
tence or two what from a hasty reading I gather to
be his mode of reaching one, it is that of a Neo-Kan-

* Illinois Law Review, Vol. X (1915).

1 25 Law Quarterly Review, 412, 414, October, 1909. Ante, pp. 285-290.

303

304 COLLECTED LEGAL PAPERS

tian idealist. Experience takes place and is organ-
ized in consciousness, by its machinery and according
to its laws, such as the category of cause and effect.
Therefore consciousness constructs the universe and
as the fundamental fact is entitled to fundamental
reverence. From this it is easy to proceed to the
Kantian injunction to regard every human being as
an end in himself and not as a means.

I confess that I rebel at once. If we want con-
scripts, we march them up to the front with bayonets
in their rear to die for a cause in which perhaps they
do not believe. The enemy we treat not even as a
means but as an obstacle to be abolished, if so it
may be. I feel no pangs of conscience over either
step, and naturally am slow to accept a theory that
seems to be contradicted by practices that I approve.
In fact, it seems to me that the idealists give away
their case when they write books. For it shows that
they have done the great act of faith and decided
that they are not God. If the world were my dream,
I should be God in the only universe I know. But
although I cannot prove that I am awake, I believe
that my neighbors exist in the same sense that I do,
and if I admit that, it is easy to admit also that I
am in the universe, not it in me.

When I say that a thing is true, I mean that I
cannot help believing it. I am stating an experience
as to which there is no choice. But as there are many
things that I cannot help doing that the universe can,
I do not venture to assume that my inabilities in the
way of thought are inabilities of the universe. I

IDEALS AND DOUBTS 305

therefore define the truth as the system of my limita-
tions, and leave absolute truth for those who are
better equipped. With absolute truth I leave abso-
lute ideals of conduct equally on one side.

But although one believes in what commonly, with
some equivocation, is called necessity; that phe-
nomena always are found to stand in quantitatively
fixed relations to earlier phenomena; it does not fol-
low that without such absolute ideals we have nothing
to do but to sit still and let time run over us. As I
wrote many years ago, the mode in which the in-
evitable comes to pass is through effort. Consciously
or unconsciously we all strive to make the kind of a
world that we like. And although with Spinoza we
may regard criticism of the past as futile, there is
every reason for doing all that we can to make a
future such as we desire.

There is every reason also for trying to make our
desires intelligent. The trouble is that our ideals for
the most part are inarticulate, and that even if we
have made them definite we have very little experi-
mental knowledge of the way to bring them about.
The social reformers of today seem to me so far to
forget that we no more can get something for nothing
by legislation than we can by mechanics as to be
satisfied if the bill to be paid for their improvements
is not presented in a lump sum. Interstitial detri-
ments that may far outweigh the benefit promised
are not bothered about. Probably I am too skeptical
as to our ability to do more than shift disagreeable
burdens from the shoulders of the stronger to those

306 COLLECTED LEGAL PAPERS

of the weaker. But I hold to a few articles of a
creed that I do not expect to see popular in my day.
I believe that the wholesale social regeneration which
so many now seem to expect, if it can be helped by
conscious, coordinated human effort, cannot be
affected appreciably by tinkering with the institution
of property, but only by taking in hand life and
trying to build a race. That would be my starting
point for an ideal for the law. The notion that with
socialized property we should have women free and a
piano for everybody seems to me an empty humbug.
To get a little nearer to the practical, our current
ethics and our current satisfaction with conventional
legal rules, it seems to me, can be purged to a certain
extent without reference to what our final ideal may
be. To rest upon a formula is a slumber that, pro-
longed, means death. Our system of morality is a
body of imperfect social generalizations expressed in
terms of emotion. To get at its truth, it is useful
to omit the emotion and ask ourselves what those
generalizations are and how far they are confirmed
by fact accurately ascertained. So in regard to the
formulas of the law, I have found it very instructive
to consider what may be the postulates implied.
They are generically two: that such and such a con-
dition or result is desirable and that such and such
means are appropriate to bring it about. In all de-
batable matters there are conflicting desires to be
accomplished by inconsistent means, and the further
question arises, which is entitled to prevail in the
specific case? Upon such issues logic does not carry

IDEALS AND DOUBTS 307

us far, and the practical solution sometimes may
assume a somewhat cynical shape. But I have
found it a help to clear thinking to try to get behind
my conventional assumptions as a judge whose first
business is to see that the game is played according
to the rules whether I like them or not. To have
doubted one's own first principles is the mark of a
civilized man. To know what you want and why
you think that such a measure will help it is the first
but by no means the last step towards intelligent
legal reform. The other and more difficult one is
to realize what you must give up to get It, and to
consider whether you are ready to pay the price.

It is fashionable nowadays to emphasize the cri-
terion of social welfare as against the individualistic
eighteenth century bills of rights. I may venture to
refer to a book of mine published thirty-four years
ago to show that it is no novelty. 2 The trouble with
some of those who hold to that modest platitude is
that they are apt to take the general premise as a
sufficient justification for specific measures. One
may accept the premise in good faith and yet dis-
believe all the popular conceptions of socialism, or
even doubt whether there is a panacea in giving
women votes. Personally I like to know what the
bill is going to be before I order a luxury. But it
is a pleasure to see more faith and enthusiasm in
the young men; and I thought that one of them made
a good answer to some of my skeptical talk when he
said, "You would base legislation upon regrets rather
than upon hopes."

2 Hie Common Law, pp. 43, 44, 4&

BRACTON DE LEGIBUS ET CONSUETU-
DINIBUS ANGLIAE

Edited by George E. Woodbine, Yale University Press,
New Haven, 1915. Volume i.

ONE who in the last thirty-five years, not to speak
of more usual themes, has seen more of treaties with
North American Indians than of Bracton cannot
speak competently of the detail of this monumental
work. Indeed the case probably is not unlike that
of the Greek Lexicon of the Roman and Byzantine
periods written by the late Professor Sophocles, of
which it was said that there was only one man in
Europe who could criticize it. That one in this case
may be my friend Sir Frederick Pollock, but it cer-
tainly is not L But some things may be said. The
history of the law is of much importance to the
understanding of the law, even apart from its signifi-
cance in the more disinterested study of anthro-
pology. Bracton is a work of the very highest
value for the theme. There is no edition that gives
us anything like an adequate approach to the un-
known original, that lets us see the variations of the
better manuscripts, or that opens to us a solution of
the problems of the text. The little but important
world that these questions interest has been praying

* 7ak Review, 1915.

BRACTON DE LEGIBUS 309

for years that someone might undertake Professor
Woodbine's task.

Now the man has come. Backed by a generous
gift of money he makes the more splendid one of his
life. For he already has devoted years and expects
to devote many more to bringing his work to an end.
The first volume, now published, proves the thorough-
ness, the all but exhaustive collection of apparatus
(that two manuscripts have been missed is no fault
of his), and the critical aptitude that he commands.
It contains a study of the pedigree of the texts with
diagrams illustrating their probable relations to their
source and to one another, and an analysis of the
addiciones. It illustrates the infinity of detail that
the editor has scrutinized with microscopic eye. It
shows the interest of the results to which his re-
searches point. At this stage perhaps the only thing
really proper to be dwelt upon is the nobility of spirit,
the heroism of the scholar that the undertaking ex-
hibits. Those who at any time have spent fewer
months than Professor Woodbine already has spent
years upon details, fired with the faith that one day
they would disclose the organic line of life that made
them great, those who remember Browning's picture
of his imaginary hero of letters in "A Grammarian's
Funeral/ ' who

Gave us the doctrine of the enclitic De,

Dead from the waist down,

will salute with a soldier's respect for a soldier this
real man who is achieving honor by sacrificing self
as fully as did the Grammarian and to a greater end.

NATURAL LAW*

IT is not enough for the knight of romance that
you agree that his lady is a very nice girl if you
do not admit that she is the best that God ever made
or will make, you must fight. There is in all men
a demand for the superlative, so much so that the
poor devil who has no other way of reaching it attains
it by getting drunk. It seems to me that this de-
mand is at the bottom of the philosopher's effort
to prove that truth is absolute and of the jurist's
search for criteria of universal validity which he col-
lects under the head of natural law.

I used to say, when I was young, that truth was
the majority vote of that nation that could lick all
others. Certainly we may expect that the received
opinion about the present war will depend a good
deal upon which side wins (I hope with all my soul
it will be mine), and I think that the statement was
correct in so far as it implied that our test of truth
is a reference to either a present or an imagined
future majority in favor of our view. If, as I have
suggested elsewhere, the truth may be defined as the
system of my (intellectual) limitations, 1 what gives

* Suggested by reading Francois Geny, Science et Technique en
Droit Positij Prwt, Paris, 1915. (Harvard Law Review, Vol. XXXII.)
(1918.)

1 Ante, Ideals and Doubts.

310

NATURAL LAW 3**

it objectivity is the fact that I find my fellow man to
a greater or less extent (never wholly) subject to the
same Can't Helps. If I think that I am sitting at a
table I find that the other persons present agree with
me; so if I say that the sum of the angles of a tri-
angle is equal to two right angles. If I am in a
minority of one they send for a doctor or lock me up;
and I am so far able to transcend the to me con-
vincing testimony of my senses or my reason as to
recognize that if I am alone probably something is
wrong with my works.

Certitude is not the test of certainty. We have
been cock-sure of many things that were not so. If
I may quote myself again, property, friendship, and
truth have a common root in time. One can not be
wrenched from the rocky crevices into which one has
grown for many years without feeling that one is
attacked in one's life. What we most love and
revere generally is determined by early associations.
I love granite rocks and barberry bushes, no doubt
because with them were my earliest joys that reach
back through the past eternity of my life. But while
one's experience thus makes certain preferences dog-
matic for oneself, recognition of how they came to
be so leaves one able to see that others, poor souk,
may be equally dogmatic about something else.
And this again means scepticism. Not that one's
belief or love does not remain. Not that we would
not fight and die for it if important we all, whether
we know it or not, are fighting to make the kind
of a world that we should like but that we have

3 i2 COLLECTED LEGAL PAPERS

learned to recognize that others will fight and die
to make a different world, with equal sincerity or
belief. Deep-seated preferences can not be argued
about you can not argue a man into liking a glass
of beer and therefore, when differences are suffi-
ciently far reaching, we try to kill the other man
rather than let him have his way. But that is per-
fectly consistent with admitting that, so far as ap-
pears, his grounds are just as good as ours.

The jurists who believe in natural law seem to me
to be in that naive state of mind that accepts what
has been familiar and accepted by them and their
neighbors as something that must be accepted by
all men everywhere. No doubt it is true that, so far
as we can see ahead, some arrangements and the rudi-
ments of familiar institutions seem to be necessary
elements in any society that may spring from our
own and that would seem to us to be civilized
some form of permanent association between the
sexes some residue of property individually owned
some mode of binding oneself to specified future
conduct at the bottom of all, some protection for
the person. But without speculating whether a
group is imaginable in which all but the last of these
might disappear and the last be subject to quali-
fications that most of us would abhor, the question
remains as to the Ought of natural law.

It is true that beliefs and wishes have a transcen-
dental basis in the sense that their foundation is
arbitrary. You can not help entertaining and feel-
ing them, and there is an end of it. As an arbitrary

NATURAL LAW 313

fact people wish to live, and we say with various de-
grees of certainty that they can do so only on certain
conditions. To do it they must eat and drink.
That necessity is absolute. It is a necessity of less
degree but practically general that they should live
in society. If they live in society, so far as we can
see, there are further conditions. Reason working
on experience does tell us, no doubt, that if our wish
to live continues, we can do it only on those terms.
But that seems to me the whole of the matter. I see
no a priori duty to live with others and in that way,
but simply a statement of what I must do if I wish,
to remain alive. If I do live with others they tell me
that I must do and abstain from doing various things
or they will put the screws on to me. I believe that
they will, and being of the same mind as to their
conduct I not only accept the rules but come in time
to accept them with sympathy and emotional affirma-
tion and begin to talk about duties and rights. But
for legal purposes a right is only the hypostasis of a
prophecy the imagination of a substance support-
ing the fact that the public force will be brought to
bear upon those who do things said to contravene it
just as we talk of the force of gravitation account-
ing for the conduct of bodies in space. One phrase
adds no more than the other to what we know with-
out it. No doubt behind these legal rights is the
fighting will of the subject to maintain them, and the
spread of his emotions to the general rules by which
they are maintained; but that does not seem to
me the same thing as the supposed a priori discern-

COLLECTED LEGAL PAPERS

ment of a duty or the assertion of a preexisting right.
A dog will fight for Ms bone.

The most fundamental of the supposed preexisting
rights the right to life is sacrificed without a
scruple not only in war, but whenever the interest of
society, that is, of the predominant power in the com-
munity, is thought to demand it. Whether that
interest is the interest of mankind in the long run no
one can tell, and as, in any event, to those who do not
think with Kant and Hegel it is only an interest, the
sanctity disappears. I remember a very tender-
hearted judge being of opinion that closing a hatch
to stop a fire and the destruction of a cargo was justi-
fied even if it was known that doing so would stifle
a man below. It is idle to illustrate further, because
to those who agree with me I am uttering common-
places and to those who disagree I am ignoring the
necessary foundations of thought. The a priori men
generally call the dissentients superficial. But I do
agree with them in believing that one's attitude on
these matters is closely connected with one's general
attitude toward the universe. Proximately, as has
been suggested, it is determined largely by early asso-
ciations and temperament, coupled with the desire
to have an absolute guide. Men to a great extent
believe what they want to although I see in that
no basis for a philosophy that tells us what we should
want to want.

Now when we come to our attitude toward the
universe I do not see any rational ground for demand-
ing the superlative for being dissatisfied unless we

NATURAL LAW 315

are assured that our truth is cosmic truth, if there
is such a thing that the ultimates of a little crea-
ture on this little earth are the last word of the un-
imaginable whole. If a man sees no reason for be-
lieving that significance, consciousness and ideals are
more than marks of the finite, that does not justify
what has been familiar in French sceptics; getting
upon a pedestal and professing to look with haughty
scorn upon a world in ruins. The real conclusion is
that the part can not swallow the whole that our
categories are not, or may not be, adequate to for-
mulate what we cannot know. If we believe that
we come out of the universe, not it out of us, we must
admit that we do not know what we are talking about
when we speak of brute matter. We do know that
a certain complex of energies can wag its tail and
another can make syllogisms. These are among the
powers of the unknown, and if, as may be, it has still
greater powers that we can not understand, as Fabre
in his studies of instinct would have us believe, studies
that gave Bergson one of the strongest strands for
his philosophy and enabled Maeterlinck to make us
fancy for a moment that we heard a clang from
behind phenomena if this be true, why should we
not be content? Why should we employ the energy
that is furnished to us by the cosmos to defy it and
shake our fist at the sky? It seems to me silly.

That the universe has in it more than we under-
stand, that the private soldiers have not been told
the plan of campaign, or even that there is one, rather
than some vaster unthinkable to which every predi-

3 r6 COLLECTED LEGAL PAPERS

cate is an impertinence, has no bearing upon our con-
duct. We still shall fight all of us because we
want to live, some, at least, because we want to
realize our spontaneity and prove our powers, for the
joy of it, and we may leave to the unknown the sup-
posed final valuation of that which in any event has
value to us. It is enough for us that the universe
has produced us and has within it, as less than it ?
all that we believe and love. If we think of our
existence not as that of a little god outside, but as
that of a ganglion within, we have the infinite be-
hind us. It gives us our only but our adequate sig-
nificance. A grain of sand has the same, but what
competent person supposes that he understands a
grain of sand? That is as much beyond our grasp
as man. If our imagination is strong enough to ac-
cept the vision of ourselves as parts inseverable from
the rest, and to extend our final interest beyond the
boundary of our skins, it justifies the sacrifice even
of our lives for ends outside of ourselves. The
motive, to be sure, is the common wants and ideals
that we find in man. Philosophy does not furnish
motives, but it shows men that they are not fools for
doing what they already want to do. It opens to the
forlorn hopes on which we throw ourselves away, the
vista of the farthest stretch of human thought, the
chords of a harmony that breathes from the unknown.

August, 1918.

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